SECTION 1. INTRODUCTION
A criminal justice system refers to a network of systems involving penal law, police procedures, probation, and a court system. Yet it is also more than these network of systems, since a criminal justice system refers equally in the way these different systems work, or even sometimes do not work, together (McKenzie, 1996).
The criminal justice system of a country is not something that is easily perfected. It is something that is developed through the course of history and should be susceptible to the changes of moral standards carried forth throughout the passage of time.
SECTION 2. THAILAND CRIMINAL JUSTICE SYSTEM
The 1997 Constitution of Thailand
The 1997 Constitution of Thailand is representative of another step towards the evolution of democracy in Thailand (McCargo, 2002). This Constitution has established new rules which have transformed Thailand into a more participatory form of government in which the citizens are vested with more freedom than that which they have possessed prior to the effectivity of the new constitution. Prior to this Constitution, Thailand was “a bureaucratic polity prone to abuse of political rights and corruption” (Kittayarak, n.d.) The 1997 Constitution has set the laws and procedures which restricts the state’s power to “infringe upon individual rights, protects individual liberties, promotes citizen participation, creates mechanisms for a greater, transparent, and accountable government, and advocates an independent judiciary” (Kittayarak, n.d.)
Due to the clamor for public reform, which was triggered by the outcry of the public as a result of the dissatisfaction of the people on the abuse of powers by the officials, the inadequate and inefficient criminal procedure, the infringement of rights, etc., the drafters of the Constitution put great emphasis on the overhauling of their criminal justice system. The framers thought that it was an issue that had to be addressed because of the rapid deterioration of public faith in the criminal justice system. As a result, a new framework of rules and procedure was established to address the growing public concern (Kittayarak, n.d.)
Legal System of Thailand
To be able to determine the trends presented by the reforms made in the 1997 Constitution, one must first ascertain the legal system of Thailand. In order to do this, we must first take a look at whether it is more related to a civil law system or a common law tradition. Once this is established, it would be easy to make an inference of the laws and procedures that it adheres to as well as the legal institutions and the roles of governmental agencies in the criminal justice system of a country. However, this is not so easily applicable in the case of Thailand because of its unique history. It can be seen that the legal system of Thailand is a mixture of both civil and common law systems. This was brought about by the pressure of both France and England, which possessed great influence over Thailand. There is nothing wrong with a mixed legal system per se. However, in this case, the great rivalry between the two mentioned influences to impose their system to Thailand has created a great imbalance for the Thai legal system especially because the two legal systems integrated are greatly incompatible with each other. This is particularly true with respect to the rights of the accused (Kittayarak, n.d.)
The Direction of Reforms as Appeared in the New ConstitutionThe criminal justice system of Thailand has put emphasis on establishing the rule of law. In order to do this, greater importance has been given to the issues of due process in the criminal justice system. “As a matter of fact, there have long been attempts to overhaul the criminal justice system in Thailand due to various problems it has encountered, namely, the abuse of powers and the lack of adequate check and balance among the authorities involved, the inefficiency in investigation, prosecution and the trial process, the violation of human rights, etc.,” (Kittayarak, n.d.) These are matters that the people have shown dissatisfaction with which are considered the source of the inefficiency in their criminal justice system. As such, these are the matters that the new Constitution has sought to address.
In most countries, the major organs of the criminal justice system are found to be under the jurisdiction or authority of the ministry or department of justice of that country. This was not found to be true in Thailand. Before, “the police and Office of the Prosecutor used to be under the Ministry of Interior before becoming independent entities since 1992 and 1998 respectively. The Correction Department is under the Ministry of Interior, while the Ministry of Justice only looks after administrative affairs of the Court of Justice and part of the probation works related to the Court” (Kittayarak, n.d.) As a result, there was no unified effort to administer justice because the tendency of each department was to focus their resources and efforts in to dealing solely with the problems within their own respective departments. There were no cooperative efforts between the departments and that lead to the inefficiency within the organizational structure of their criminal justice system.
This inefficiency prompted the government to reform the organizational structure of the Ministry of Justice. Starting January 9, 2002, the Ministry of Justice was restructured to include the following agencies:
1. Office of the Minister of Justice;
2. Office of the Permanent Secretary;
3. Office of Justice Affairs;
4. Department of Rights and Liberties Protection;
5. Special Bureau of Investigation;
6. Office of the Narcotics Control Board;
7. Office of the Anti-Money Laundering Board;
8. Institute of Forensic Science;
9. Department of Correction;
10. Department of Probation;
11. Department of Child Observation and Protection;
12. Department of Legal Execution;
It was also vested with supervisory powers over the Office of the Attorney General, the Thai Bar Association, and the Law Society (Kittayarak, n.d.).
Capital PunishmentOn January, 2001, the cabinet members of Thailand endorsed a bill changing the method of execution from machine gun to lethal injection (CNN.com, 2001). This was eventually approved by the Thai parliament and was effectively introduced on October 19, 2003. Prior to this, those sentenced to death were tied on a post and shot with a machine gun behind a curtain. Some say that even if lethal injection is more humane than the use of a machine it is still a form of cruel and unusual punishment because the life of a person is still at stake (Amnesty International, 2003).
Alternative Forms of Punishment
Restorative justice was a common practice in the past before the modernization of the Thai legal system. This was so because they preferred a negotiary approach in disputing settlements due to the fact that Thai people lived in extended families. They would only go to the authorities if the crime committed is of a serious nature. Upon the modernization of the legal system in the 19th century, restorative justice gradually faded away.
On February 10, 2004, The Cabinet endorsed the use of restorative justice programs through a resolution that allowed its use as an alternative to dispute resolution. In his speech in Radio Thailand, the Thai prime minister said:
“Restorative justice is a new, viable, alternative for Thai criminal justice. It should be applicable not to all kind of criminal offences but to some particular offences such as in juvenile cases. This new approach allows the three parties, i.e., the society, the victim and the offender, to sit down and discuss informally among them on ways and means to make redress and restitution to the victims. Although it may not be much, but this will definitely help the victims to feel better. Moreover, through the restorative process, the offender may feel repentant and accept the sanctions, if any, imposed upon him. This will also allow the society to embrace both victims and offenders. This will encourage more public participation in criminal justice and is undoubtedly a better way than the retributive approach” (Roujanavong, 2005).
Restorative justice can be defined as: ” a systematic response to wrongdoing that emphasizes healing the wounds of victims offenders and communities caused or revealed by crime. Practices and programs reflecting restorative purposes will respond to crime by: identifying and taking steps to repair harm; involving all stakeholders and transforming the traditional relationship between communities and their governments” (Van Ness, Crocker & Brooke, 2003). This was also introduced and embraced in Thailand to prevent the overcrowding of jail cells, which has been a recurrent problem in recent years.
Examples of alternative punishments from this kind of system include “restitution, community service, and any other program or response designed to accomplish reparation of the victim and community, and reintegration of the victim and/or the offender” (Ua-amnoey, 2007).
SECTION 3. CANADIAN CRIMINAL JUSTICE SYSTEM
The Canadian Criminal Code was submitted to and enacted by Parliament in 1892. Numerous amendments were made up until 1955 when a completely new Criminal Code was enacted to supersede the previous Code. This Criminal Code was adopted based on the principles taken from the jurisprudence of criminal cases in England. The application of this Code is uniform all over the country. The 1867 Constitution Act of Canada provides that the federal government has the exclusive jurisdiction to enact criminal laws. The act also grants the local governments or provinces to enact laws provided that it is to be made effective only within its territorial jurisdiction.
An amendment to the Constitution was introduced on April, 1982 which strengthened the individual rights of a citizen. This is known as the Canadian Charter of Rights and Freedom, which was incorporated as the first part of the Constitutional Act. Prior to this amendment, the citizens were bereft of certain rights and guarantees, which would protect them from state action that were made in excess or lack of jurisdiction to the prejudice of the citizens. Because of this, “the courts now have to decide whether legislation or actions by officials offended any of the rights and freedoms guaranteed in the Charter and in the old BNA Act” ( MacIntosh, 1989, p. 12).
Rights of an AccusedOne should not underestimate the seriousness of a criminal trial. Firstly, the liberty of a person is in jeopardy, and secondly, the stigma of a criminal conviction is at stake. In recognition of this, both the Charter of Rights and Freedom and common law tradition provide for appropriate protection. The right of an accused to be presumed innocent until proven guilty beyond reasonable doubt that a crime was committed by him is one of those protections. Another example is the right against unreasonable and illegal search and seizures.
“The Canadian legal system emerges from two traditions: Roman law and English common law. The New France was established in 1664 in accordance with the laws of the English mother country. The English common law came to Canada via the English settlers and was even partially introduced into Quebec through the Conquest (1763). Today, civil law in Quebec is based on the Code Civil du Quebec which is derived from the French code Napoleon; whereas in the other Canadian provinces, civil law is based on the English common law” (Van Loon & Whittington, 1976, p. 160). Even if Canada’s legal system uses an inquisitorial approach, the adversarial approach is also adopted in both civil and criminal procedure.
After years of debate, Capital punishment was finally abolished from Canada’s Criminal Code in 1976. This was decided upon because the members of the parliament found such as an inappropriate penalty. “The reasons for this decision were due to the possibility of wrongful convictions, concerns about the state taking the lives of individuals, and uncertainty as to the effectiveness of the death penalty as a deterrent. Parliament replaced the death penalty for murder with a mandatory life sentence with no eligibility for parole for 25 years in the case of first-degree murder, and between 10 and 25 years for second-degree murder” (Department of Justice Canada, 2005).
Alternative forms of punishment
This is similar to the system of restorative justice of Thailand, which requires the offender to repair the injury that he has caused. It is a system where all three parties, the offended party, the offender , and the community, actively participate in discussions to repair the situation and to fix the relationships within the community. The Canadian restorative justice was adopted from their Aboriginal justice traditions.
The different kind of penalties that a judge can impose are the following:
1. Fine – (a sum of money);
2. Restitution (an order requiring the offender to compensate for injuries or to pay compensation for loss of or damage to property as a result of the offence);
3. Probation (release of the offender on the conditions prescribed), which may include community service;
4. Community service (an order that the offender perform a certain number of hours of volunteer work in the community); or
5. Imprisonment (confinement in a prison or penitentiary) (Department of Justice Canada, 2005).
SECTION 4. ANALYSIS
One of the major reasons for the instability of the criminal justice system of Thailand is its legal system. The legal system in Thailand has been described as a mixed legal system, as opposed to civil law or common law, since it draws its foundations from both common law (from England) and civil law (from France). Even though Thailand was never formally colonized, its legal system had been heavily influenced by both the English and the French. As a result, Thailand has taken elements from both the English and French legal systems, resulting in a highly imbalance system. For instance, under the French civil law system, a judge is expected to be more active in searching for the truth during trial. On the other hand, under the English common law system, the concept of adversary proceedings were emphasized wherein judges were supposed to maintain a passive and impartial role throughout the trial (Gilbert, 1995). By way of another example, the roles of prosecutors and the police under the civil law system provides that they should assume a quasi-judicial role, whereas under the English system, Thai prosecutors are expected to play a substantially less significant role, such as not being allowed to initiate or conduct criminal investigations (Petrosino, 1991).
It should also be noted that restorative justice was a traditional practice in Thailand, with the people preferring a negotiatory approach to dispute settlement. Before the Thai legal system was modernized, victims would go to authorities for serious crimes such as murder or robbery, but preferred to deal with minor conflicts through informal mediation proceedings conducted in a restorative manner. In such proceedings, not only the parties but as well as their families and the entire community, participated in the negotiation process. When the legal system in Thailand was modernized in the 19th century, as influenced by the French civil law system and English common law system, implementation was difficult at first. There was no law to back up the practice, and there was a common notion among the people that granting justice was the exclusive duty of the court. With the judges being called upon to be the sole decision-maker in settling cases, the concept of restorative justice in Thailand eventually disappeared (Zhong, 2007).
Canada has been self-governing since 1867. But even though they were independent since then, they have always kept their ties with the British crown. The influence of the English criminal justice system is evident in the Canadian criminal justice system. This can be seen in the legal system of Canada as well as their Charter of Rights and Freedom. As it was mentioned, even if Canada uses the civil law system, their civil law was based on the English common law tradition. The Charter of Rights and Freedom, on the other hand, was also based on common law jurisprudence.
The only problem the Canadian criminal justice system has encountered as a system was the ineffectiveness of the Canadian Bill of Rights. This resulted to the inefficiency to protect the fundamental rights of its citizens. This however was addressed through the enactment of the Charter of Rights and Freedom. The movement for a change started as early as post World War II when citizens sought for the protection of human rights and freedom. The principles embodied in the Universal Declaration of Human Rights were also sought to be adopted.
At present, the concern in the criminal justice system of Canada does not dwell on the system itself, but on its enforcement. There have been growing concerns about the relationship between racism and the enforcement of the laws by the police and the judiciary. This is brought about by the diversity of ethnic groups in Canada. Statistics has shown that the ethnic groups are divided as such: British Isles origin 28%, French origin 23%, other European 15%, Amerindian 2%, other, mostly Asian, African, Arab 6%, mixed background 26% (About.com, 2005). Studies have been made regarding this but were found to be empirically inconclusive. “Generally, the research suggests that racism does exist throughout the justice system, but it is subtle and covert in nature. The discretion which may be exercised by the justice system actors, coupled with the subtle and covert nature of racism, however persuasive, may account for the absence of conclusive research finding” (The Nizcor Project, 1997).
SECTION 5. CONCLUSION
As shown above, the success and efficiency of a criminal justice system is not something that can be immediately perfected (Tuvayanond, 2004). It is created and developed throughout the course of history, and is constantly changing with the growing needs of society. Comparing the two legal systems above, it can be seen that the difference between the efficiency of the two criminal justice systems can be traced back to each country’s history.
For instance, in analyzing Thailand’s unique history, it may be true that the nation has always maintained its independence. This however does not insinuate that they were never without any external pressure from other nations. For instance, both France and England both exerted their influence for the Thai to adopt their legal system. As a result, in the efforts to please both nations, a mixed legal system was developed. But due to the incompatibility of both legal systems, the legal system developed by Thailand became imbalanced and thus, inefficient.
On the other hand, Canada is a nation that was colonized by England. It attained its independence in the late 1800s but still maintained relations with the British crown. As a result, their system of laws were patterned from the English law, although it was slightly modified. No such conflict existed such as that experienced by the Thais. The system of law itself was efficient in Canada. It adjusted to times when needed. An example of this is the passage of the Charter of Rights and Freedom. Today, the only problem left to address is the problem of racism in the enforcement of the Canadian laws. But this is already in the process of being remedied. The previous studies that have been conducted at least show awareness in the citizenry of such fact. Though it may not be proven empirically that such problem exists, at least it is a step towards the improvement of their legal system.
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