RESOURCE MATERIAL SERIES No. 55

PUBLIC PROSECUTORS IN THE CHANGING SOCIETY
Suchart Traiprasit*
I. INTRODUCTION
We are in a changing world, with theadvent of the 21st century only a year
ahead. The new era will witness many
substantial changes which have alreadybeen experienced by the passing decade.
Apart from some scientific andtechnological complexities, such as the
problems of Y2K and environmental
protection, to cope effectively with therising rate of modern crime is anotherchallenge to be addressed by the changing
society. The advance of technology andcommunications between countries during
the 20th century not only introduced
development in terms of expanding
commerce, cultural exchange, and othercooperation, but also brought with it some
negative results such as the rising of crime,
which has become more complex both in
the form and mode of commission.
Under the free trade liberalization of thecurrent society, competition seems to beunmerciful and inevitable. For the loser
of this contest, it means no employment,
which in turn gives rise to an increase ofproperty crime, as well as other related
criminality. The economic crisis recently
undergone by several countries in the Asian
region, is more than an illustration in thisregard. In Thailand alone, the rate of crime
has been shockingly rising during thisdecade.
Technological advances, while bringing
much progress to the world, have become
an advantage for criminals in committing
certain complex or innovative crimes.
These are very difficult to prevent or* Attorney General, Thailand.

336

suppress, due to legal loopholes or inferior
technology on the part of the law
enforcement officials. Computer crime,
economic crime, and crime related tofinancial institutions are included in thiscontext.
Convenience in travelling abroad,perhaps by the expansion of the tourist
industry and international business
investment, not only provides morepotential for transnational organized crime
to be committed, but also allows theoffender to flee conveniently from one
jurisdiction to another. This, of course,
directly affects domestic justiceadministration and calls for thestrengthening of international cooperation.
Another phenomenon prevalent in thechanging society of today is the worldwide
recognition of human rights promotion andprotection, which has also generated newconcept towards the rights and obligationsof people, and thereby gives rise to review
and restructure of criminal justice in many
countries.
Amidst the various changes of thistransitional period, criminal justice willcertainly be even more influenced in the
future, since it is correlated to all factorsof alteration. Many problems regarding
criminal justice already exist underglobalisation, either in the field of technicalquestions (such as legal loopholes indealing with the complexity of the newly
emerged crime) or in the administrative
area (such as the determination of the newroles and direction of law enforcement
officials). These are believed to continue
at least into the early stages of the next
century.

111TH INTERNATIONAL SEMINAR
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As one component of law enforcement
and criminal justice, the public prosecutor
plays a crucial and active role in controllingand suppressing crime, both at thedomestic and international level.
Prosecution services, like other things, can
not ignore the trend of the changing society.
To encounter the phenomenon of challenges
under the new dimension of crime and its
steering, the public prosecutors have toreappraise and adjust their roles anddirection to cope with the forthcoming
situation. To this end, many changes in
the prosecutorial service have alreadyoccurred in some countries, while in othercountries the tendency of adjustment is
becoming more and more apparent.
The public prosecution service inThailand has been developed for more thana half millennium. The first restructuringof the Thai public prosecutor institution
took place around a hundred years ago, andthe most recent one occurred in 1993. Like
its counterparts in many countries, Thai
public prosecution has experienced manychanges to date. Development of its role,
function, and attitude regarding criminal
justice and crime control usually responds
to the dynamic changes of Thai society.
II. GENERAL OBSERVATIONS ON
THE PUBLIC PROSECUTOR
A. Traditional Characteristics of the
Public Prosecutor
Perhaps the most striking description of
the public prosecutor is as Prince
Sakolwannakorn Worawan, a famous Thai
scholar, defined long ago in his lecture atThammasart University:“If the criminal proceeding is a play,then the public prosecutor is the hero
because the accomplice of the case iscompleted by his part. In somecountries, the public prosecutor takes
an even more crucial role than thejudge. He is the one required by thelaw to shoulder the exercising of
discretion as to proceed with thecriminal case or to halt it. Prosecutorial
function should, therefore, bedischarged with a high spirit and great
pride. Responsibility and prestige ofthe public prosecutor should be
respected as no less crucial than thatof the judge in terms of remuneration,d i g n i t y, a n d t r u s t o f i n t e g r i t y.
Particularly in the jury system,
whether the defendant will be guilty or
not is up to the performance of the
public prosecutor rather than the
judiciary. Integrity of the publicprosecutor is, therefore, more crucial
than other elements.”
To view the public prosecutor as the heroof criminal proceeding is not an
overestimation. The public prosecutor is aunique figure in criminal justice uponwhom is the important task of acting as
the principal representative of the State incriminal litigation. They are answerable
to the success or failure of the case, fromthe outset until finalisation. In somecountries, such as Korea, the publicprosecutor is viewed as a quasi-judicial
official 1 , while in France s/he is even
deemed as a judicial member (magistrat debout)2. The public prosecutor is the one who
exercises quasi-judicial power at the initialstage to prosecute or release the suspect,and eventually to check the court’s decision
and appeal or uphold it. Discretion of the
public prosecutor as to instituting or
dropping criminal cases is recognized
everywhere, and in any legal system, as
exclusive and independent.
1. “Criminal Prosecution System in Korea”, Supreme
Public Prosecutor’s Office, p.32, printed in 1997.
2. David & de Vries, “The French Legal System(1938)”, p.21, as cited by Jitti Tingsabhat in “The
Legal Profession”, Thammasart University, 1986,
p.155.

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In Thailand, the public prosecutor is a
career-oriented official belonging to the
Office of the Attorney General. After the
restructuring of the former Public
Prosecution Department into anindependent public body known as the
Office of the Attorney General in 1993, thepublic prosecutor is also called the State
Attorney. According to the Public
Prosecutor Act B.E. 2498(1955), theCriminal Procedure Code, and various
legislation concerned, the Thai publicprosecutor is regarded as the State Counsel
or the Public Lawyer who represents theState in criminal proceeding to regulate
criminality and give effect to its sanctions.1
Significance of the public prosecutor isderived from their function andresponsibility, which may take many forms.
In addition to criminal justice steering, thepublic prosecutors in many countries are
entrusted with keeping the public interestin civil matters, namely; to represent theState in civil and commercial litigation, as
well as to give legal advice.
In the United States, the prosecuting
attorney is also charged with some otherfunctions, as Joan E. Jacoby pointed out:
“Although the general focus of theprosecuting attorney is on criminal caseprocessings, he is not simply a criminal
litigator. More and more the prosecutor
has been assigned other duties by thelegislature. Three out of four
prosecutors have civil responsibility for
representation of the county Board ofCommissioners or for the local
governing agency. The prosecutor’s
1. “Thai State Attorney”, introductory document of theThai State Attorney Museum, 1998, Office of the
Attorney General.
2. “The American Prosecutor : A Search for Identity”,
Lexington Books, 1980, p.xx.

338

duties have been extended to include
involvement in juvenile matters, infamily and domestic relations court, inanswering or responding to citizen
complaints, in conducting non-support
programs, in handling traffic,
consumer, or environmental protection
projects, and in pursuing appeals.
Their interests and jurisdiction havebeen extended to cover a wider avenueof community problems.”2
In Thailand, the public prosecutor is also
designated to review draft commercial
contracts of the government agencies, aswell as to revise or propose some new laws.
The tendency of the Thai public prosecutor
to participate more actively and directly
than before, in other fields such as theprotection and promotion of human rights,
is also on the rise. Yet, as the chief legal
official, the public prosecutor is normallyregarded as the legal figure to fight against
crime, to maintain peace and order, and tosecure social justice and fairness.
In the technologically advanced andg l o b a l i s a t i o n a g e o f t o d a y, w h e r einternational cooperation to combat
transnational organized crime is urgently
called for, it seems unavoidable for the
public prosecutors to internationalize theirroles and functions in all respects beyond
that once traditionally practiced at thedomestic level. This is also apparent withprosecutors in Thailand.
From general survey, it may be said thatthe traditional characterising of the publicprosecutor is as a government official who
is entrusted to institute prosecution incriminal cases. However, under dynamicchanges in society, the public prosecutor
may have been or will be designated todischarge other functions as well. This may
set the public prosecutor on a new path ofwider responsibility in the future.

111TH INTERNATIONAL SEMINAR
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B. Functions of the Public
Prosecutor
Taking the model of Thailand as an
example, the traditional functions of the
public prosecutor are threefold. These
functions are: (1) to provide criminal
justice; (2) to protect public interest; and(3) to protect civil rights and provide legal
aid.
1. To Provide Criminal Justice
The main objective of crime prevention
and suppression is to bring the offender tojustice. Bringing the offender to justice, inthe broad sense, means to put them underinvestigation, prosecution, adjudication,
punishment, correction, or rehabilitation.
In other words, the suspect must be testedof their guilt or innocence by the process ofcriminal justice administration or the caseproceeding. Once a person has beenprosecuted, it means their freedom islimited. Prosecution is, therefore, adifficult task requiring high responsibility.
The law and public entrust the publicprosecutor to assume this function.
The prosecutorial function includes allprocesses related to the criminal
proceeding, such as;(i) to review the evidence derived frominvestigation;(ii) to exercise discretion regarding theadmissibility and adequacy of theevidence, as well as other reasons andappropriateness so as to instituteprosecution or not to prosecute thesuspect;(iii)to pursue the trial in the court;(iv) to adduce evidence and question
witnesses; and(v) to review judgment of the court andappeal or drop the case.
As for the investigation, in Korea, Japan,
and the United States, the publicprosecutor is entitled to conduct

investigation either in cooperation with thepolice or on their own initiative. In
Thailand, this is not currently practiced.
According to the Criminal Procedure Code,the investigation is conducted by theinvestigation officials; commonly, seniorpolice and some high-ranking
administrative officials. The only publicprosecutor vested with the investigation
powers in regard to criminal cases whichhave been committed outside the territoryof Thailand is the Attorney General or the
Acting Attorney General. However, theseparation of the prosecution process fromthe initial stage of fact finding orinvestigation has become an impediment
to the effective proceeding of somecomplicated cases. In particular, with new
dimensions of criminality, alteration in
investigation process is now apparent.
Participation of the public prosecutor at theinitial stage of investigation has been
mentioned during the drafting of the new
Criminal Procedure Code, which is now
under consideration of the drafting
committee.
Apart from conducting prosecution on
behalf of the State, the public prosecutor
may also take charge as the defending
attorney for an official who has beenprosecuted by a private individual inconnection with the performance of theirduty. This Thai public prosecutor isrequired by the Public Prosecutor Act
B.E.2498 to defend the government official
in criminal cases instituted by private
individuals, however, it is the sole
discretion of the public prosecutor to takeaction or not.
2. To Keep the Public Interest
In many countries, the idea of using
public prosecutors for purposes beyond thescope of criminal proceedings may be
uncommon. Yet in some countries, like theUnited States and Thailand, the publicprosecutor is also entrusted to assume

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RESOURCE MATERIAL SERIES No. 55
responsibility of protecting the interests ofsociety. As regards this function, the publicprosecutor performs their work in threeways:(i) By representing the government
agencies, state enterprises and somespecific public entities in civil andcommercial litigation of all kinds, as thestate lawyer;(ii) By reviewing draft contracts to beentered between government agencies,
state enterprises or some specific public
entities on the one hand and the private
sector on the other;(iii)By giving legal views, rendering advice
and performing other duties as thelegal consultant for the government,
state enterprises and some other public
entities in accordance with the law.
3. To Protect Civil Rights and Provide
Legal Aid
Generally speaking, the publicprosecutor in any system has responsibility
to protect the public in terms of crime
control and criminal proceedings. Under
the changing society of today, he or she may
be warranted to go far beyond this
responsibility. In Thailand, for instance,
the public prosecutor also directly
participates in the protection of civil rights
and providing legal aid. This function was
initiated around 16 years ago. At that time,
there was a dramatically high rate oflitigation where poor people, in particular
the farmers, had fallen victim to fraud bysome more powerful merchants (whosnatched the opportunity of legal illiteracy
and incapability to afford lawyers on thepart of the poor, to cheat them). Realizing
its responsibility to keep social peace andfairness, the then Public Prosecution
Department launched a project to rectify
the situation. Three categories of services
were rendered, namely:(i) Dissemination of legal knowledge to the
public in order to make them aware of
their rights and duties, and to decrease340

the possibility of disadvantage due tolegal blindness;(ii) Giving legal advice to the poor free ofcharge;(iii)Providing legal aid to the poor andneedy people who have no capacity toafford their own lawyers in litigation,
free of charge.
III. PHENOMENON OF THE
CHANGING SOCIETY
Change in society is not a newphenomenon. In fact, it occurs anddevelops at all times. Since criminal
justice, in particular the role of the publicprosecutor, is influenced by the changing
society, it is appropriate to overview thisphenomenon as a general background tobetter understand developments in the
public prosecution service. Perhaps anincident that took place in Thailand sometime ago might be a good illustration in thisregard.
Thailand was influenced by Westernculture, which brought in many
rudimentary changes in the society for the
first time, during the colonization age.
Although saved from being colonized,
Thailand had to give away many parts ofher territory as well as to conclude unfair
agreements with various European
countries to establish “Extra Territoriality”;
the practice whereby the Thai court had
no power to try the subjects of foreigncountries who committed crimes within the
territory of Thailand. Consequently, many
aspects of Thai tradition, in particularjustice administration, were reformed andmodernized to cope with the westernrequirements in order to prevent
accusations of “unsatisfied standard” by
the western nations. In this regard, theformer practice of the public prosecution
service in Thailand was restructured andsystematized to establish the Public
Prosecution Department for the first time

111TH INTERNATIONAL SEMINAR
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during the reign of King Chulalongkorn in1893.
During these decades, drastic changes
in society again occured. With the arrivalof globalisation, the transfer of technology,
movement of information, andcommunications between people, newinfluences were brought from aboard. Thisis, of course, the main factor that forces
nations to adjust themselves in compliancewith the global situation. For those who
can keep pace with the sweep of changes,
it means development and more benefit; yetfor those who can not, it means being left
behind and getting hurt. Keeping pacewith change may be accessed by different
avenues and styles, depending on national
assessment and the decision of particularcountries; the outcome of which may be thepros and cons. However, the undeniable
truth in this regard is that countries canno longer ignore the phenomenon of thechanging world and society.
Therefore, under the contemporary
period, all states have no other option but
learn how to adjust their national policy
and practice to conform to the influx ofchanges as best as possible. Experiencesfrom the past may be understood as good
lessons, however this is not totally true,
even there might be some truthfulness
behind this presumption. The policy topromote a more open and freer society,although appearing to deteriorate thevitality of the economic and financial
systems of many developing countries, has
somehow encouraged the public to beaware of their rights and positive values,
such as the maintenance of democracy andthe significance of international
cooperation. Despite the recent economic
retreat, the promising tendency towards
political reform is still bright. In Thailand,
for instance, the passage of the newConstitution in October 1998 has induced
many developments regarding theadministration of justice, which in turn
related to the prosecution service. Besideindirectly setting the grounds for publicprosecutors to reassess their roles, theConstitution also imposes upon them more
responsibility to guarantee the rights andfreedom of the people and to take part in
the process of review of the integrity ofpoliticians and high-ranking officials.
With regard to the role and function of
the public prosecutor in the context of thechanging society, there are many topics ofparticular interest. However, this paper
will limit its scope to the following:(i) Public prosecutors and their increasingrole in the protection of human rights;(ii) Public prosecutors and a new role
regarding suppression of corruption;(iii)Public prosecutors and international
cooperation.
IV. PUBLIC PROSECUTORS AND
THEIR INCREASING ROLE IN THE
PROTECTION OF HUMAN RIGHTS
It is no doubt that in the daily handlingof criminal cases, the public prosecutor isrequired by the law, as well as theirinherent realization, to regard thefundamental rights of every party
concerned. The requirement for the publicprosecutor to protect human rights is either
clearly enshrined or indirectly implied invarious provisions of the Criminal
Procedure Law and other related
legislation. In most countries, thefundamental human rights of the suspect
and the accused is recognized by theirconstitutions. Under the changing societyof today, the current constitutions ofvarious countries not only confirm such
recognition, but also stresses it as thecornerstone for the development of criminal
justice. In Thailand, provisions regarding
the recognition of human dignity, equality
u n d e r t h e l a w, p r o h i b i t i o n o f
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RESOURCE MATERIAL SERIES No. 55
liberty and encouragement of freedom, areclearly spelled out in Chapter 3 of thepresent Thai constitution. Essentially, the
Human Rights Commission is required by
the Constitution to be established within
two years. The necessity and profitabilityof having the public prosecutor in theprotection and promotion of human rights
has been increasingly recognized. Thechanging trend that places the publicprosecutor in closer and greater
involvement in this regard may beillustrated from the recent phenomena in
Thailand.
A. Protection of Civil Rights
With regard to the protection of the civilrights of an individual in general, and thevictims of the crime in particular, theprovisions concerned are as follows:(i) Section 31 of the current constitution
clearly provides in the first paragraphthat:“A person shall have the right andliberty in his or her life and person...A
torture, brutal act, or punishment by
cruel or inhumane means shall not be
permitted; provided, however, thatpunishment by death penalty as
provided by law shall not be deemedpunishment by cruel or inhumanemeans under this paragraph. No
arrest, detention or search of person or
any acts affecting the right and liberty
under paragraph one shall be madeexcept by virtue of the law.”(ii) Section 34 provides that:“A person’s family rights, dignity,
reputation or the right of privacy shallbe protected. The assertion or
circulation of a statement or picture,in any manner whatsoever to the
public, which violates or affects aperson’s family rights, dignity,
reputation or the right of privacy, shallnot be made except for the case which342

is beneficial to the public.”(iii)Section 35 provides that:“A person shall enjoy the liberty ofdwelling. A person is protected for hisor her peaceful habitation and forpossession of his or her dwelling place.
The entry into a dwelling place without
consent of its possessor or the search
thereof shall not be made except for thecase which is beneficial to the public.”
These provisions have been operated by
the Penal Code, which embraces in its
content similar provisions, but together
with the imposition of penalty for those who
violate them. Upon these provisions,whenever the right of any person is violated
in one way or another, an offence is said tohave been committed, and to institute a
criminal case against the offender by the
public prosecutor is somehow consideredas the discharge of the function to protect
the human rights of the victim.
B. Protection of the Rights ofSuspects and the Accused
As for the suspect and the accused,various rights are recognized by theprovisions of the constitution, as follows:(i)

The right not to be arrested without
judicial warrant in accordance with
Section 237, which provides that “Ina criminal case, no arrest anddetention of a person may be madeexcept where an order or a warrantof the Court is obtained, or wheresuch person commits a flagrant
offence, or where there is such othernecessity for an arrest without
warrant as provided by law. The
arrested person shall, without delay,
be notified of the charge and detailsof such arrest, and shall be given an
opportunity to inform, at the earliest
convenience, his or her relative, or
the person of his or her confidence,of the arrest. The arrested person

111TH INTERNATIONAL SEMINAR
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being kept in custody shall be sent
to the court within forty eight hours
from the time of his or her arrival at
the office of the inquiry official, inorder for the court to consider
whether there is a reasonable groundunder the law for the detention of thearrested person or not, except for thecase of force majeure or any otherunavoidable necessity as provided bylaw.”;(ii)

The right to be released on bail inaccordance with Section 239 which
provides that “An application for bailof the alleged offender or the accusedin a criminal case must be accepted
for consideration without delay, andan excessive bail shall not be
demanded. The refusal of bail must
be based upon the grounds
specifically provided by law, and thealleged offender or the accused must
be informed of such grounds without
delay... The right to appeal against
the refusal of bail is protected asprovided by law... A person beingk e p t i n c u s t o d y, d e t a i n e d o r
imprisoned has the right to see andconsult his or her advocate in private
and receive a visit as may beappropriate.”;(iii)

The right not to be subjected toarbitrary detention in accordancewith Section 240 which provides that
“In the case of the detention of aperson in a criminal case or any
other case, the detainee, the publicprosecutor or other person acting in
the interest of the detainee has theright to lodge with the court having
criminal jurisdiction a complaintthat the detention is unlawful. Upon
receipt of such complaint, the court
shall conduct forthwith an exparteexamination. If, in the opinion of thecourt, the complaint presents a

prima facie case, the court shall havethe power to order the person
responsible for the detention to
produce the detainee promptly
before the court, and if the person
responsible for the detention can notsatisfy the court that the detention
is lawful, the court shall order an
immediate release of the detainee.”;(iv)

The right to speedy investigation andtrial under Section 241 which
provides that “In criminal cases, analleged offender or an accused has
the right to a speedy, continuous andfair inquiry or trial... At the inquiry
stage, an alleged offender has theright to have his or her advocate or
person of his or her confidence attend
and listen to interrogations against
such person... An injured person oran accused in a criminal case has theright to inspect or require a copy ofhis statements made during theinquiry, or documents pertaining
thereto when the public prosecutor
issues a final non-prosecution order,
an injured person, an accused or aninterested person has the right toknow a summary of the evidence,
together with the opinion of theinquiry official and the publicprosecutor, with respect to themaking of the order for the case, as
provided by law.”;(v)

The right to access to legal aid under
Section 242 which provides that “Ina criminal case, an alleged offenderor an accused has the right to receive
aid from the State by providing an
advocate without delay. In a civil
case, a person has the right to receivea legal aid from the State, as
provided by law.”;(vi)

The right not to give statements or
testify against themself under343

RESOURCE MATERIAL SERIES No. 55
Section 243 which provides that “Aperson has the right not to make astatement incriminating himself or
herself which may result in criminal
prosecution being taken against him
or her. Any statement of a person
obtained from inducement, apromise, threat, deceit, torture,physical force, or any other unlawful
act shall be inadmissible inevidence.”;(vii) The right to be presumed innocent
according to Section 33 which
provides that “An alleged offender oran accused in a criminal case shallbe presumed innocent... Before thepassing of a final judgment
convicting a person of having
committed an offence, such persons
shall not be treated as convicts.”(viii) The right to apply for review of thecase after conviction and to becompensated in the case of
misleading adjudication pursuant to
Section 247 which provides that “Inthe case where any person was
inflicted with a criminal punishmentby final judgment, such person, aninterested person, or the publicprosecutor may submit a motion forreview of the case. If it appears in
the judgment of the court reviewing
the case that he or she did notcommit the offence, such persons or
their heir shall be entitled toappropriate compensation, expenses
and the recovery of any right lost by
virtue of the judgement, upon theconditions and in the manner
provided by law.”
Upon recognition of those rights of thesuspect and the accused, various provisionsof the Criminal Procedure Code are
grounded in correspondance to theConstitution. It is remarked also that the344

new Constitution has emphasized evenmore strongly the rights and liberty of thesuspect who might have been abusively
arrested and detained by the police. The
Constitution puts an end to the authorityof the senior administrative or police officer
in arresting any suspect without a judicial
arrest warrant formerly permitted by the
Criminal Procedure Code. It requires
future arrests to be conducted under the
warrant of the court, which is issued upon
the application of the public prosecutor.
This means that the public prosecutor, fromnow on, will take part more directly inchecking the reasonableness of the grounds
to apply for the judicial warrant.
In the case of abusive detention, where
the Constitution has slightly changed theprinciple under Section 90 of the Criminal
Procedure Code, the public prosecutor isrequired by law to inspect and apply to thecourt for the release of the victim of theabuse. Far beyond the provisions of the
Criminal Procedure Code, the Constitution
guarantees non-conviction for the innocent
through review of the case after a final
judgment inflicting penalty upon theaccused, and to compensate the injured if
there is such misleading judgment. In thisregard, the public prosecutor is designatedby the Constitution to be the publicauthority to initiate the process bysubmitting a motion to the court. This, ofcourse, is a new dimension to the role ofthe public prosecutors, to cope with therising trend of stressing fundamental
human rights protection.
C. Participation in the Drafting of
Human Rights Protection Laws
Apart from developments in daily
practice regarding the fundamental rights
of individuals, as well as those directly
concerned in criminal case proceedings, therecent Government’s designation of the
Attorney General to chair the Drafting
Committee for the “Act on the Promotion

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
and Protection of Human Rights”, and the
Office of the Attorney General to facilitate
the drafting process, is another example ofthe increasing role of the public prosecutor
regarding human rights in modern society.
V. PUBLIC PROSECUTORS AND
THE SUPPRESSION OF
CORRUPTION
Experience from the past always tell us
about the tragedy of developing countries
as regards the adjustment of their economic
settings to cope with the contemporary
world. Disintegration of the social
structures of these countries, mostly fromagricultural to industrial or commercial,usually results in the unfair distributionof wealth and eventually encourages anextreme materialism preference, instead of
ethnic or religious. Consequently, thepractice of corruption, in particular bypoliticians and high-ranking officials, has
become fashion and has undoubtedly
undermined the stability and progress ofthe community. In this globalisation age,the problem of corruption has spread allover the world and become an issue ofcommon concern in the international
community. Yet, the question still awaiting
answer is in what way and how the publicprosecutor can contribute in tackling thissocial disease. In this context, again,
perhaps the recent efforts of Thailand in
the campaign against corruption may be agood example.
Like other developing countries,
Thailand has for long been weakened by
the practice of corruption among politicians
and some high-ranking officials. For eachyear, the national interests have beencheated far beyond estimation. It is very
difficult to detect the crime or trace
misappropriated property because corrupt
3. Pasuk Ponpaichit, “Resolution of Corruption in theThai Bureaucracy”, Thai Post newspaper, 15
December, 1998.

criminals are very shrewd and never leave
any clues. Just recently, research on“Corruption and Democracy in Thailand”,
conducted by the Faculty of Economic
Study of Chulalongkorn University 3 ,revealed that corruption in the Thaibureaucracy includes four aspects, namely:(1)Syndicate corruption; (2)Procurement
kickbacks; (3)Bribery for monopolytransactions; (4)Corruption related tobidding. The key factor of corruption,according to the research, is the lack of“good governance” and integrity uponwhich the line between the personal andpublic interest is drawn. One suggestion
made by the research is to install effective“integrity tests” for politicians and highranking bureaucrats.
In this regard, the former Counter
Corruption Board, a body set up under thePrime Minister Office to examine andforfeit unclearly obtained assets of highranking officials alleged of being unusuallyrich, can do little of its job due to its limited
authority and independence. With therising awareness of the public regard totheir rights, the need to check and review
the integrity of politicians and highranking officials has been responded to by
the new Constitution. The Counter
Corruption Board has been restructured
and changed to the National Counter
Corruption Commission, an autonomous
public body with more power andindependence by virtue of Section 297,
Section 301, and Section 302. In addition,a specific means to control the integrity andethics of politicians has been establishedby virtue of Section 308 which provides
that:“In the case where the Prime Minister,a minister, member of the House ofRepresentatives, senator or other political
official has been accused of becoming
unusually wealthy, or of the commission of
malfeasance in office according to the Penal

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RESOURCE MATERIAL SERIES No. 55
Code, or malfeasance in duties, or
corruption according to other laws, theSupreme Court’s Criminal Division for
Persons Holding Political Positions shallhave the competent jurisdiction to try andadjudicate the case... The provision ofparagraph one shall apply to the casewhere the said person or other person is aprincipal, an instigator or a supporter.”
To put these provisions into effect, again,
the public prosecutor is designated to takepart. Section 305 clearly mentions this inparagraph 4 and paragraph 5 as follows:“If the National Counter Corruption
Commission passes a resolution that theaccusation has a prima facie case, theholder of the position against whom theaccusation has been made shall not, asfrom the date of such resolution, perform
his or her duties until the Senate has
passed its resolution. The President of the
National Counter Corruption Commission
shall submit the report, existing documents
and its opinion to the Attorney General for
instituting prosecution in the Supreme
Court’s Criminal Division for Persons
Holding Political Positions. If the National
Counter Corruption Commission is of theopinion that the accusation has no prima
facie case, such accusation shall lapse... In
the case where the Attorney General is of
the opinion that the report, documents andopinion submitted by the National Counter
Corruption Commission, under paragraph
4, are not so complete as to instituteprosecution, the Attorney General shallnotify the National Counter Corruption
Commission for further proceedings and,for this purpose, the incomplete items shallbe specified on the same occasion. In suchcase, the National Counter Corruption
Commission and the Attorney Generalshall appoint a working committee,
consisting of their representatives in an
equal number, for collecting complete
evidence and submit it to the Attorney

346

General for further prosecution. In the casewhere the working committee is unable toreach a decision as to prosecution, theNational Counter Corruption Commission
shall have power to prosecute by itself or
appoint a lawyer to prosecute on its behalf.”
To institute prosecution of a criminalcase and to handle it may be considered as
the traditional function of the publicprosecutor. However, to institute a
criminal case against a corrupt politician
under an exclusive machinery and process
is somehow viewed as recent. The role andresponsibility of the Thai public prosecutor
has extended to cover functions as a public
body to participate in the checking andreview of politician’s ethics and integrity.
VI. PUBLIC PROSECUTORS AND
INTERNATIONAL COOPERATIONThe necessity of states to renderassistance to foreign nations in theprevention and suppression of crime wasattested long ago. Today, when crime has
become an excessively complicatedtransaction, committed by transnational
criminal organizations, international
cooperation between and among countries
to regulate world peace and order seems
to be even more significant.
In a broad sense, international
cooperation means all assistance regarding
the criminal proceedings one state provides
to an other state upon request. Assistance
may take many forms, such as collecting
evidence, providing documents, taking
statements of persons, testimony of
witnesses, initiating criminal cases, andforfeiting properties, etc. It also includes
extraditing a fugitive to a foreign country
for prosecution, trial, conviction, or to serve
punishment. International cooperation has
been viewed as conforming to the era ofchange, as it includes technical cooperation
between or among states either on the

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
bilateral or multilateral basis. At the levelof the United Nations, the effort toencourage international cooperation has
culminated in the form of various
international instruments such as the UN
Model Treaty on Extradition, UN Model
Treaty on Mutual Assistance in Criminal
Matters, UN Model Treaty on the Transfer
of Proceedings in Criminal Matters, etc. In
spite of the non-mandatory character atpresent, all international guidelines forma good basis for member states of theUnited Nations to make their laws conformto the model. This may give clear light on
the changing norms and standards indomestic practice regarding international
cooperation in the future.
In Thailand, international cooperationis conducted in two directions; one throughmutual assistance in criminal matters, theother through extradition. In both
directions, the public prosecutor takes verybroad roles and responsibility. Of course,
the role played by the Thai publicprosecutor is more or less similar to thatof their counterparts in many countries.
Observation of the development in function
and responsibility of the Thai publicprosecutor in the area of international
cooperation is, therefore, deemed a good
illustration in this regard.
A. Mutual Assistance in Criminal
Matters
The main legislation concerning mutual
assistance in criminal matters in Thailand
is the Act on Mutual Assistance in Criminal
Matters B.E.2535(1992). Those parts notcovered by the Act are governed by the
Criminal Procedure Code. According to
Section 6 of the Act, the Attorney Generalor the person designated by him is the“Central Authority” who, by virtue ofSection 7, is charged with the following
functions:(i) To receive the request for assistancefrom the requesting state and transmit
it to the Competent Authorities;(ii) To r e c e i v e t h e r e q u e s t s e e k i n g
assistance presented by the agency of
the Royal Thai Government and deliver
it to the requested state;(iii)To consider and determine whether toprovide or seek assistance;(iv) To follow and expedite the performanceof the Competent Authorities inproviding assistance to a foreign state
for the purpose of expeditious
conclusion;(v) To issue regulations or announcement
for the implementation of this Act;(vi) To carry out other acts necessary forthe success of providing or seeking
assistance under the Act.
The request for assistance from thecountry having a mutual assistance treaty
with Thailand shall be submitted directly
to the Central Authority, while the requestfrom those who have no treaty shall be
submitted through diplomatic channels.
Affirmation of reciprocity is theprerequisite for execution of the requestfrom non-treaty requesting states. All
requests are reviewed and executed by theCentral Authority, empowered to exercise
discretion to refuse execution of requests
which are ineligible.
In practice, the public prosecutors of theInternational Affairs Department, Office of
the Attorney General, are the task force for
the Central Authority in this regard. The
increase in number of the requests fromabroad, as well as the complexity of legal
issues, is a time consuming factor which
renders problems to the whole process ingeneral, and to the public prosecutor (asthe practitioner) in particular. This isrelated, of course, to the question of manpower and technical arrangements the
public prosecutor has to cope with.

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RESOURCE MATERIAL SERIES No. 55
B. Extradition
Extradition in Thailand is conducted ona dual basis, that is to comply with theExtradition Act B.E. 2472, as well as theprovisions of the treaty. Unlike thosetreaty prerequisite countries, Thailand has
no difficulty in surrenderring the fugitive
upon request from the requesting state
which has no treaty with Thailand.
However, in the case of no treaty, an official
confirmation of reciprocity is required.
Execution of extradition requests fromforeign countries are also subject to general
requirements such as non-contradiction of
the principle of “dual criminality”, “nonbis in idem (double jeopardy)”, “rules of
speciality”, and so forth.
The role and function of the publicprosecuter in extradition is clearlyenvisaged. According to Section 141 of the
Criminal Procedure Code, the publicprosecutor is charged with the duty torequest extradition from a foreign country
where the offender fled abroad. As regards
extradition requets from foreign countries,
the Extradition Act B.E. 2472 provides itis the responsibility of the public prosecutor
to litigate extradition cases in the court.
Although the final decision whether toextradite the fugitive or not belongs to thegovernment, which in practice means the
Cabinet, the public prosecutor exercises
discretionary power on behalf of the State,including the government, for technicalmatters, while the Ministry of Foreign
Affairs deals with foreign relations policy.
Va r i o u s p r o b l e m s c o n n e c t e d t oextradition have emerged. Awareness ofthe necessity to cooperate with each otherin the suppression of the fast-growing
transnational organized crime has induced
states to endeavor to eradicate all barriersin extradition between countries, inparticular those arising from discrepancy
between legal systems, a serious problem
until now. To harmonize diversity,348

attempts have been made on several
occasions either at the global or regional
level by international organizations,associations and NGOs. The adoption of
the United Nations Model Treaty on
Extradition in 1990, as the uniform
guidelines to facilitate conclusion of
extradition treaties between states, is an
explicit illustration of these efforts. It is
expected therefore that in the future,
extraditon, in responding to the changing
society, will be more convenient than now.
In Thailand, perhaps the mostconspicuous response in regard to
extradition is the overhaul of theExtradition Act B.E. 2472. The Act has
been in use for nearly 70 years since its
passage in 1929, thus it could not cope withmodern concepts and new forms ofproblems, and eventually required revision.
So far, the new Act is under drafting by the
Drafting Commission appointed by the
Cabinet and chaired by the Attorney
General. The new extradition law is
expected to be capable of answering various
questions arising from uncertainty inpractice among the authorities concerned,
such as those related to political offences,
extradition of Thai nationals, capital
punishment, prima facie cases, simplified
procedure, etc.
One of the new concepts which directly
involves the role of the public prosecutoris the trend to establish a “Central
Authority for Extradition”. Presently,
extradition in Thailand is commonly
handled by various authorities, namely, theMinistry of Foreign Affairs, the Ministryof Interior, the Office of National Police, theOffice of the Attorney General, and thecourt. This often brings some difficulty interms of delay, inconvenience, disharmonyof interpretation and different practices
among the authorities concerned. The
introduction of a “Central Authority” istherefore, based on the need to settle these111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
problems. According to the new draft of
the “Extradition Act”, the Attorney Generalis proposed to be the “Central Authority”,
which means that the role and function of
the public prosecutor in extradition will be
more concentrated in the future.

ignoring the tendency of change.
Adjustment of the prosecution service forthe effective control of crime is expected tobe established and continued in theforthcoming century.

VII. CONCLUSION
Upon general survey of the current
situation, it is undeniable that the worldis undergoing a great change in all aspects.
Globalisation has brought with it positive
and negative results in terms ofdevelopment. For many countries, theinflux of modern concepts and new formsof economic settings has become the causeof an increasing rate of both traditional andinnovative crimes. Advancement oftechnology has been exploited often bycriminals to commit complex or high-tech
crime. The effect of these crimes is evenmore serious when committed acrossborders, becoming transnational incharacter.
To cope with these circumstances,criminal justice administration must be
reviewed and adjusted to conform to thetrend of change in society nowadays. This,of course, includes the role and function of
the public prosecutor.
Traditionally, the public prosecutor isdeemed as a state official who renders
prosecutorial functions, i.e, to prosecute theoffender or to drop the criminal case. The
future public prosecutor may be set on a
new direction, i.e more responsible for awider scope of function such as checking
and investigating the integrity ofpoliticians and high-ranking officials(against corruption), protecting humanrights, and encouraging international
cooperation, etc.
One thing for sure is that under thechanging society of today, no publicprosecutor of any country can stand alone349