People’s Right to Information Against the Independence of Individual Public Prosecutors in Prosecutorial Decisions and Its Impacts on the Criminal Justice

Abstract

            This article aims to analyze the issue regarding people’s right to information against the independence of public prosecutors in making case orders and its effect on criminal justice. The Constitution upholds the independence of public prosecutor in making case orders as well as duty performance expeditiously and fairly without any bias. When a public prosecutor decides not to prosecute, the Criminal Procedures Code stipulates the duty of public prosecutor to keep the alleged offender and petitioner informed. The victim, alleged offender and stakeholder have the right to request the public prosecutor to receive a summary of evidence with the case orders by the investigator and public prosecutor. While claiming the right under the Official Information Act B.E. 2540, such a person also requests statements of witnesses and all level of public prosecutors’ prosecutorial internal legal opinion (Aor Kor 4). If the prosecutor rejects, the person making the request often complains to the information disclosure tribunal and then files a lawsuit in the Administrative Court.

            The analysis reveals that the Criminal Procedures Code constitutes the process of inspecting the decision not to prosecute and separates the decision not to prosecute in Bangkok from that in other provinces. In case of dissenting opinion, the decision not to prosecute will be submitted to the Attorney-General for final decision. In any case, a petitioner remains to have the right to initiate a lawsuit by himself. These procedures are parts of the criminal justice. The right to information under the Official Information Act B.E. 2540 probably exposes the identity of witnesses who have given statements against the petitioner, subsequently leading to another dispute. It also affects the independence of public prosecutor in decision making according to the Constitution. Furthermore, there is no information disclosure tribunal specialized in criminal justice. Eventually, a dispute relating to official information disclosure in the criminal procedures should fall within the ambit of the jurisdiction of the Court of Justice rather than that of the Administrative Court.