Legal Problems Concerning the Authority of the Ombudsman in Fact-Finding: A Case Study of Prisons

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Abstract

The objectives of this independent study were to 1) study and analyze legal problems concerning the authority of the ombudsman in fact-finding in prisons, and 2) suggest guidelines for solutions. Documentary research was used, of which data were obtained from the Constitution of the Kingdom of Thailand B.E. 2560 (2017), the Organic Act on Ombudsmen B.E. 2560 (2017), and relevant internal laws, followed by comparison with foreign laws, including Sweden, New Zealand, and the United Kingdom.

The study revealed 3 major problems as follows. The first concerned the scope of authority to inspect prisons without prior notice. The law was not written clearly as to whether or not the ombudsman can inspect prisons without prior notice. This is an obstacle for impartial fact-finding, because prior notice may result in altered or terminated evidence. The next problem found involved access to evidence and storage. Documents in prisons are restricted, with several levels of approval procedures which may take a long time, possibly leading to document editing or screening prior to inspection. The last problem concerns witness protection in prisons. Thus far, there have been no clear provisions regarding the protection of prisoners as informants or witnesses for the ombudsman.

As for the comparative study with foreign countries, it was found that Sweden, as the pioneer of the ombudsman system, establishes a strong foundation for public sector accountability. Meanwhile, New Zealand and the United Kingdom demonstrate highly effective legal mechanisms for fact-finding within closed institutions. Particularly in New Zealand, the ombudsman has the authorities to inspect prisons without prior notice and freely has access to documents as well as evidence. Also, the clear mechanisms for cross-institutional checks and witness protection in these foreign jurisdictions ensure that prison inspections are robust, efficient, and impartial.

Based on the aforementioned, this independent study suggests 3 solution guidelines drawing upon the principles of the master models and foreign laws studied: (1) Section 25 of the Organic Act on Ombudsmen B.E. 2560 (2017) should be amended to be unambiguous and provide the ombudsman the authority to inspect prisons without prior notice; (2) There should be a clear mechanism of access to evidence, meaning the ombudsman should have prompt access to documents and evidence with no need to go through any complicated procedures; (3) the Department of Corrections’ Regulations on Witness Protection should be amended in order to include prisoners who give statements to the ombudsman, parallel to setting protection measures and punishments for those who threaten witnesses. Based on these solutions, the ombudsman can effectively protect the human rights of prisoners, aligned with the intent of the constitution to facilitate a strong and independent inspection mechanism so that individuals under vulnerable conditions will receive equal protection of rights and freedom.