Prathan Watanavanich
Introduction
This paper deals with restorative
justice in the Thai social and cultural settings based on indigenous
law and innovative conciliation, mediation and dispute resolution.
These informal justice alternatives have been widely used long
time in Thai social setting in the rural as well urban communities.
Personal relations and a close knitted social solidarity play
significant role in crime prevention, dispute resolution and
social order.
The restorative justice in modern paradigm is relatively recent
approach to solving crime and punishment. The restorative model
is different from the justice or just deserts models. The origin
of restorative model developed on restitution and community service
sentence in the 1970's sometime was dubbed as rehabilitative
model. The philosophical attribution of restorative program is
restoration and reparation for the victim. Restorative justice
is also pointed out at similarities and overlap with peacekeeping
model. The approach between these two models is consistent with
the ethics of care and accountability of the offender that emphasize
needs rather than retribution. There are certain important questions
on the meaning and impact of restorative justice to the offender.
The integration of offender into the community is one thing and
reintegration without stigma, banishment, or exclusion is another
(Pollock, 1998). The method and principle of restorative justice
envisages in recent literatures are sound and promising to resolve
human conflict and antagonism.
Genesis of Restorative Justice
The dispute settlement in a given society-informal, community and restorative justices may trace back to customary law, tradition and practice in social and cultural settings in that society.
The restorative justice has drawn from ancient concepts and practices in western as well as eastern societies. In the middle ages in Europe, as formal justice system emerged and began to define the status of offender under the sanction of the state. The offender has an obligation to the state rather than the victim. The victim's status is relegated to assisting role or by stander and witness. Modern restorative justice has been emerged by innovative program developments in several countries in 1970's and 1980's (see Van Ness, 2000).
These programs were reported and cited in offender-victim mediation, pre-sentence, sentencing and restitution. As Van Ness pointed out in the past 20 years, "restorative justice has become influential movement in many countries and has been spreading into application in every stages of criminal justice administration."
Tony Marshall, a British Criminologist,
defines restorative justice as a process whereby all the parties
with a stake in a particular offense come together to resolve
it collectively, how to deal with the aftermath of the offence
and its implications for the future."
This procedural definition may not settle all issues and questions
on restorative justice, but it is helpful as a point of departure
to understand and further discussion. An elaboration by Susan
Sharp a Canadian scholar has shed light on five key principle
of restorative justice as follows, (Van Ness, p. 3).
1. To give full participation
and consensus between the parties.
2. To try settling differences and heal the broken ties and relations.
3. To find full responsibility and direct accountability.
4. To reunite the divided and broken social order in the community.
5. To strengthen the solidarity in community to prevent additional
harms.
Table 1. Retributive and Restorative
Paradigms
___________________________________________________
Retributive Restorative Justice
____________________________________________________
Crime is an act against the state, Crime is an act against
another person
violation of the law, an abstract idea and the community
The criminal justice system controls
Crime control lies primarily in the
crime community
Offender accountability defined
as Accountability defined as assuming
taking punishment responsibility and taking action to
repair harm
Crime is an individual act with Crime has both individual
and social
individual responsibility dimension of responsibility
Punishment is effective
Punishment alone is not effective in
a. threat of punishment deters crime changing behavior and
is disruptive to
b. punishment changes behavior community harmony and good
relationships
Victims are peripheral to the process Victims are central
to the process of
resolving crime
The offender is defined by deficits The offender is defined
by capacity to
make reparation
Focus on establishing blame or guilt, Focus on problem solving,
on liabilities/
on the past obligation, on the future
Emphasis on adversarial relationship Emphasis on dialogue
and negotiation
Imposition of pain to punish and Restitution as a means
of restoring both
deter/prevent parties; goal of reconciliation/restitution
Community on sideline, represented Community as facilitator
in restoring
Abstractly by state process
______________________________________________________________
Source: Cited from Bazemore and Umbreit, 1996.
In concluding this point, the UN draft elements of a declaration of basic principles on the use of restorative justice programs in criminal matters defines restorative process as any process in which the victim, the offender and/or any other individuals or community members affected by a crime actively participate together in the resolution of matters arising from the crime, often with the help of a fair and impartial third party. The examples of restorative justice include mediation, conferencing and sentencing circles.
Under the basic principles, restorative
justice programs are encouraged at all stages of criminal justice
process. All process should be voluntary and the parties themselves
shall reach for the agreement with reasonable and proportionate
obligation. While the restorative process that safeguarding
the right of parties engage in the case, the agreement reached
or outcomes is recognized and binding the parties similar to
judicial discharge. However, failure to the restorative process
and mediation shall refer back to the formal process for settlement.
The operation of restorative justice programs should be established
by legislation with standards and guidelines. These are referral,
handling, and qualification of personnel, administration and
ethical rules governing the operation of restorative justice
The values and assumption of restorative justice are emphasized on victim needs, involvement, right and role in the restorative process. The emergence of victim rights movement has based on the reaction to law and unrecognized status of victim in the criminal justice system.
However, the restorative justice
is not a victim's right approach
(Bazemore and Umbreit, 1996). The proponents of restorative
justice promote a victim-centered approach that does not necessarily
require the criminal justice policy makers, or administrators
to take side between the victim and offender. Rather the new
paradigm emphasizes on the victim needs and the offender is held
accountable to the victim. The case value in the restorative
justice as pointed out by advocates is to balance the needs of
offender, victim and community as parties of the criminal justice
system.
Restorative justice as a community based mediation programs
as well as alternative dispute resolution is less formal and
less expensive than arbitration and litigation.
"Mediation is a process in which a neutral third-party
is called upon by the parties to a dispute to help them resolve
that dispute" (American Bar Association, 1987). The mediator
shall act as facilitator, neutral and detachment; he may see
and recommend for possible resolutions that the parties may not
consider. The mediator does not give a ruling. The mediation
process is negotiation that involves neutral facilitator to seek
voluntary and amicably dispute resolution.
Criminal Mediation in Thailand
The criminal justice system as
a whole process is blamed for neglecting the victim, or the victim
has insignificant role in the justice process. In Thailand,
the victim is entitled to institute a prosecution of offender
by his own means without assistance, or approval by the state.
However, a small numbers of victim seek their own justice in
the court of justice. Most find their recourses in the formal
criminal justice system by lodging their complaints with the
police. They subsequently act as witnesses or assistants of
the authority in the judicial discharge of their cases.
The Thai legal system has adopted the civil law tradition of
Western Europe and influenced by the English law and legal education.
In fact, the Thai social setting has rooted in agriculture and
agrarian way of life since the past century. Social and economic
developments, especially urbanization, migration and industrialization
have transformed the society into modernization. However, the
several development plans have succeeded in industrialization
and urbanization and the rural developments were left further
behind.
In agrarian society, the people are interdependent and depending
on relatives and kinship. Buddhism has played significant role
in the ways of life, belief, custom and social values. The ruler
in the old days adopted a fatherly approach to govern at all
levels, village, community (Tambon), district, province and the
central government. The rulers, especially in the province, have
paid more attention to the collective well being and feeling
of the people as well as peacekeeping in the community. (In the
old days, the victim had to lodge his complaint to the ruler
and may institute his own criminal prosecution.) Currently,
this legacy is adopted in a dual criminal prosecution under the
Criminal Procedure Code, section 28. The public prosecutor, with
exception in certain offenses, and the victim (injured person)
are entitled to institute criminal charge. (The continental
European as well as English laws have influenced in the Thai
criminal procedural law). In addition, the public prosecutor
and the victim may mutually be involved and cooperated in the
prosecution of the offender as joint partners. An alternative
to criminal prosecution may resolve under formal and informal
justice process.
Criminal Mediation and Settlement
under the Criminal
Procedural Law
In certain criminal law offenses, usually lesser, non-aggravating, or compoundable offenses, the victim and offender are entitled to settle their own disputes, or resolving under the mediation of the inquiry police officer, or judicial authorities in any stages of criminal justice process. The victim and offender usually negotiate for settlement under the supervision of facilitators or legal officers together with restitution payable to the victim.
Community-Based Mediation for Dispute Settlement
The local administration act of 1914 and the administration of village volunteer defense and development act of 1979 have provided for conciliation and mediation as alternatives dispute resolution both civil and criminal matters. The laws have entrusted the power and authority to village-based mediation committee and village volunteer for defense and development committee to settle disputes all civil and certain criminal offenses within the village by means of conciliation and mediation. The method and procedure of mediation are specified by the regulation of the Ministry of Interior. For criminal mediation and settlement, the offenses are restricted to compoundable offenses (private wrongs) provided by the criminal code. The village dispute settlement project is under the administration of the Ministry of Interior and undertaken by office of the Attorney General. The project has its main objective to enhance community justice, equality and eradicating exploitation in the rural communities. The project is first implemented by dissemination of legal literacy and legal aid programs, including the development of people organization in the village to settle their own disputes by means of conciliation and mediation.
Currently, the office of provincial public prosecution and the village mediation committee are taken more responsibility for dispute settlement in the villages and communities. The project has implemented in coordination with the district that oversaw the village as shown in the diagram. A province consists of a number of administrative districts. A district divides into Tambons (community) and a Tambon divides into villages, the smallest local unit. The governor and chief district officer are government officials appointed by the Ministry of Interior. The people in the community elect the head of a Tambon, or village as their leader and he/she is represented the government. Therefore, the head of Tambon/village is an official under the supervision of the district chief.
Table 2 Organization of Government, Central, Regional, Province, District, Tambon and Village and the Number of Organizations as of 1998
Central Government
Ministry (14)
Regional (9)
Province (75)
Excluding Bangkok and Local Autonomies,
e.g. Municipality
Town and City Administration
District (795), Sub-District
(81)
Tambon (7,255)
Village (68,777)
___________________
Source: Statistics on Local Administration, Department of Local
Administration, Ministry of Interior, 1999, The figure in the
bracket is number of the respective organization.
The guidelines and standards of local dispute resolutions are provided under the local administration laws and the ministerial regulation issued in 1987.
1. The local Administration department
(LAD), Ministry of Interior is jointly responsible with the office
of Attorney General and the National Police Agency in the administration
of local dispute settlement. The LAD shall take a principal role
with the assistance of the public prosecutor and the police.
2. The village mediation committee (VMC) shall take initiative
in dispute settlement only for civil and compoundable criminal
offenses.
3. The dispute settlement undertaken by the VMC shall first ask
for voluntary and consent of the parties.
4. The process of dispute resolution shall take steps as follows:
The parties who wish to settle their dispute shall inform the
head of the village.
The head of the village first has a duty to preliminary investigate
whether the case is eligible to pursue in the VMC and give a
notice to the parties and the venue of settlement.
The VMC shall appoint at least two members to hear the case,
or may invite other suitable persons to take part in the process
as they see fit.
The head of the village shall make an appointment with the VMC
to convene the process without delay.
The VMC are entitled to summon any person concerned with the
dispute to answer the question or if necessary inspect the evidence.
The mediation process shall conduct in the presence of the parties
at the office of the head of the village, or other place as specified
by the VMC.
The mediation process shall conform to law or local custom for
fairness to the parties.
In case of difficulty, the VMC members may invite the chief
district officer, deputy chief, or a police officer that has
legal knowledge and/or a public prosecutor to advise members
of the VMC.
The mediation proceeding shall be recorded as follows.
In case of disagreement, the VDC shall stop the mediation process
and inform the parties, then refer the case to the chief district
officer for perusal.
In case of reconciliation, the VDC shall make a compromise agreement
for four identical copies in conformity with the requirement
of civil, or criminal case. The committee is required to read
and explain the essence of the agreement to be clearly understood
by the parties. The parties hereunto sign their names and keep
one copy each. Other copies shall keep one at the village head
office and another forward to the office of the district. The
agreement arising out of the mediation process shall be effective
as an evidence in the court of justice.
In case of failure, the parties are entitled to submit their
case to be heard by the district office, or to proceed in the
criminal justice process.
In 1999, there were only
25 criminal and eight civil cases reported by the office of civil
right protection and legal aid division, Office of the Attorney
General between October 1988 to September 1999. The village mediation
committee settled only half of these cases.
The other pilot project carried out in 9 provinces by the
volunteer community mediation program of the Judicial Affairs
Bureau, Ministry of Justice showed that there were 1,115 civil
and cases settled by means of mediation out of 1,234.
Discussion
The village mediation-based
project carried out in the rural community is rather limited
in scope, jurisdiction and offenses provided by the criminal
law, criminal procedure and regulation. The project utilized
in selected villages and communities as the alternative dispute
resolution was under reported or not reported at all. This may
attribute to low priority and short of funding in the village
and the community administration. Other reasons are lack of
support, training and consistent policy on the project.
In the past, local administration department has established
innovative mediation project, such as village tribunal to resolve
minor disputes in selected provinces for experiment. Meanwhile
the experimental program has not continually implemented nor
setting up in the province. Other pilot projects and practices
were scattered in the family and juvenile court, probation and
correction services that addressed to diversion and community
service. Recently, the government has submitted the first comprehensive
state sponsored victim compensation program to the National Assembly
for promulgation.
There has not been a comprehensive restorative justice project
aimed at or model for an entire criminal justice system. A trained
facilitator/mediator is sorely needed to carry out the work in
every stages of criminal justice system.
Finally, integrative process of the offender into society
has to involved members of his family and community. The public
and private organizations shall have to take responsibility in
monitoring offender for compliance with probation order, or the
given condition and facilitating the victim into the community
REFERENCES
American Bar Association. Alternative
Dispute Resolution. A Handbook for Judges, 1987.
Bazemore, Gordon and Mark Umbreit. "Rethinking the Sanctioning
Function in Juvenile Court: Retributive or Restorative Responses
to Youth Crime." In Criminal Justice, Annual Edition 1996/1997,
Dushkin Publishing Group, Guilford, Conn. 1996.
Fattah, Ezzat A. "Victimology: Past, Present and Future"
Criminologie, Vol. 33, No 1, 2000, pp. 17-46.
Marshall, Tony F. Alternatives to Criminal Courts. London:
Gower Publishing, 1985.
Pollock, Joycelyn M. Ethics in Crime and Justice. Belmont,
CA. West/Wadsworth, 1998.
Umbreit, Mark S. "Restorative Justice through Victim-Offender
Mediation: A Multi-Site Assessment". At http:/www.prehall.com/cjtoday/chapter10/delux.html.
UN Commission on Crime Prevention and Criminal Justice, Economic
and Social Council, (Draft Resolution) Basic Principles on the
Use of Restorative Justice Programmes in Criminal Matters, Vienna
18-20 April 2000.
Van Ness, Daniel W. Restorative Justice Around the World, United
Nations Crime Congress: Ancillary Meeting, Vienna, Austria, 2000.
Thai Publication
Office of Administration, Department of Local Administration,
Ministry of Interior, Statistics of Local Administration, 1999
Kornurai, Supatra. Criminal Mediation. LL.M. Thesis, Faculty
of Law, Thammasat University, Bangkok, 2000.
Mahakun, Vicha. Introduction to Conciliation and Mediation in
Family Case." Dulapah Journal, 41, November-December, 1994.
Probation Department, Ministry of Justice. Report on the Evaluation
of
Training Programs in Mediation, No 13/2543, 2000.
Wangwanrat, Viyada. Informal Justice. LL.M. Thesis, Faculty of
law, Thammasat University, Bangkok, 2000.
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