CRIMINAL JUSTICE REFORM A LESSON ON COMPARATIVE CRIMINAL JUSTICE

national June 13, 2019

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As of May 2019, there are 386,902 inmates in the Thai prison system. In 2018, the food cost for prisoners totaled 7,521,347,880 baht or 54 baht per day. Prisons are overcrowded retaining nearly four times as many as inmates than its actual capacity, while crime and recidivism rates are still high. The criminal justice system has made significant strides over the years in the effort to prevent and reduce crimes, as well as to rehabilitate and reintegrate ex-prisoners into society, yet challenges remain. 

The Thailand Institute of Justice (TIJ) is the driving force towards the rule of law and sustainable development for a peaceful and safe society. With TIJ’s Executive Program on the Rule of Law and Development (RoLD), now in its third year, emerging leaders took part in the seminar “Comparative Criminal Justice” to generate ideas on how to further improve the criminal justice process and garner more public trust in the system. 

According to Prof. Dr. Kittipong Kittayarak, Executive Director of TIJ, public trust comes from transparency in criminal justice. The willingness to explain and make public the trial procedures and reasons for verdicts.

“The law must be just, based on human rights and democracy. The process of enacting laws must be transparent and the execution of laws must be effective,” he said.

One of the most significant challenges is how Thailand approaches criminal justice. We have the legal frameworks that comply with international standards. However, many of the criminal laws are viewed as merely a “lip service.”

According to Prof. Dr. Surasak Likasitwatanakul, Chair of the Board of Directors of TIJ, there is still a reluctance to put certain procedures into practice, especially the ones leading to non-custodial results. This leads to a cluttered justice system in which, in 2018, there were nearly two million criminal cases handled by just around 5,000 judges nationwide. This directly leads to the towering numbers of incarcerated people and overcrowded prisons.

“The mechanisms for punishing someone requires a lot of time and money. There’s cost-benefit to everything,” said Prof. Dr. Surasak.

Nonetheless, there are legal frameworks that aid prosecutors and also benefit society. For example, in Non-Prosecution Agreement (NPA), the public prosecutor may come into an agreement with a suspect, in a non-serious crime with a low probability of reoffending, to perform public services rather than bringing the case to trial, thereby saving time and resources.

Furthermore, in countries like France and the Netherlands, prosecutors have discretion on whether or not to pursue a case. This is called Opportunity Principle. For example, in order to free up capacity in the legal system and to devote resources to serious crimes, certain petty crimes may not be prosecuted. Besides, if pieces of evidence are deemed insufficient to obtain a guilty verdict, the prosecutor may not pursue the charge. If the suspect has no history of prior crimes and is judged unlikely to commit further crimes, then the charge can be dropped.

While there are accommodating legal frameworks, culture is an obstacle, said Prof. Dr. Surasak. This is where prosecutors are afraid to drop charges, due to fear of accusation of bribery, which is certainly a major concern in Thailand as a whole, not just in the justice system. Therefore, the court system ends up cluttered and the prison system overcrowded.  

There’s a subjective context to both NPA and Opportunity Principle. The discretion of prosecutors plays a crucial role in criminal justice. To gain public trust, those working in criminal justice, from the police and prosecutors to judges must build the credibility and integrity required. This is opposed to an “apathetic” criminal justice system, which does not encourage public trust.

An example of the subjective context that requires discretion is this: A mother stealing to buy milk for her child versus a man stealing to use the money for gambling. Same crime, different motivations. Should both cases be pursued to an equal extent?  Do prosecutors have the credibility and integrity to make a subjective decision?

Prof. Dr. Surasak said, “In the Netherlands, prisons are closing down, spaces are rented out. However, in Thailand, there aren’t enough prisons. For us, overcrowded prisons are always a problem, and if prisons are always overcrowded, then how could we rehabilitate and reintegrate effectively?”

According to Prof. Dr. Kittipong, while there are many institutions working on criminal justice, they should work in the same direction. That is, to create the rule of law and sustainable development. In this, all institutions must synergize, and in the end, the law works best if it has the trust of the public.

“There must be the supremacy of the law that people trust. The law must protect human rights. There must be due process. Institutions must have accountability. No one is above the law.” said Prof. Dr. Kittipong.

The seminar “Comparative Criminal Justice” is part of TIJ’s efforts to instill emerging leaders with the understanding of how criminal justice works in different countries and the changes needed in Thai criminal justice. With this knowledge, these emerging leaders may then help to instill in society a mindset conducive to the rule of law and sustainable development, as well as make impacts on the policy level.