Globalization and Restorative Justice: in the Thai Criminal Justice System

Jutharat Ua-amnoey*

Meanwhile, the Working Party had begun drafting basic principles on restorative justice by using the guidelines and standards from all over the world. In November 2001, Van Ness presented his draft of the "Declaration on the Proposed UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters" to the UN Experts' Meeting Group in Canada. In 2002, after the draft containing the Basic Principles was distributed for comment around the world, this resolution was adopted by the Economic and Social Council (ECOSCO) of the United Nations. For a period of several years beginning in the year 2000, the United Nations set a number of meetings that were intended for training and socializing and familiarizing every stakeholder at every level in the criminal justice system with the idea of restorative justice. The Eleventh Crime Congress took place in April, 2005, in Bangkok. The agenda lists a workshop, named "Restorative justice: community involvement, diversion, and other alternative measures, " in which member countries can discuss the basic principles and other issues pertaining to the use of restorative justice.

5. The Concept of Restorative Justice in Thai History

The anthropological work of Chatthip Nartsupha (1997, p. 3-4) proves that even in today's traditional Thai villages, as in South Navar Village, in Ubonrajthanee Province in Northeastern Thailand, an informal dispute resolution for petty criminal cases is used. For example, in a dispute between neighbors, each side will invite four or five village elders to join the meeting to reach a decision about the quarrel and to determine some way to resolve the dispute, often by asking one of the parties to apologize or amend some action. This is called a "Saga Pu Tao " or "Village Elder Senate. " So, the fact is that many Thai villagers in rural areas have used this informal and social method of criminal conflict resolution for generations as a village custom to control and resolve conflicts among villagers by enabling crime victims to participate with the community's representatives in the justice system.

It seems that, even though Thailand had adopted a so-called modern legal system, in remoter villagers some informal criminal justice systems based on the concept of restorative justice were used persistently across time and space. This socio-cultural structure has continued throughout time and space as an alternative dispute resolution system for Thai people in rural areas from ancient times until now. This evidence proves that these sanctions or nontraditional criminal processes, based on the villagers' respect for their village elders, could benefit both parties in certain cases and could restore social harmony without actually bringing those cases to a formal trial. Unfortunately, restorative justice is not accepted as law in the Thai nation state. As Charan Puckdeetanakul, the Justice of Court of Appeal, said, "... The powerful. formal Judicial System endangers and threatens the local community justice. Conciliation by the respected elderly conciliator in the communities was not accepted by the modern legal and judicial system because the whole proceeding of legislate, law enforcement and trial are done by the states power" (2000, p. 25). So, the appearance of this contempo rary social phenomenon in Thai society might be called "the furthering development of the concept of restorative,justice in Thai Society.

6. The Rise of Contemporary Restorative Justice in Thailand

To answer the research question of how restorative justice could arise in Thai society and in its criminal justice system, I have used the hypothesis to be the tendency in the explanation of the model in Figure 1 which found that

The Declination of the Retribution Paradigm in the Thai Criminal Justice System

1) From B.E. 2435 (1892), during the colonization period, the Thai criminal justice and legal system underwent a shift from an eastern philosophy of law that was similar to the idea of "Natural Law" to John Austin's more western approach of "Legal Positivism" (Preedee Kasemsup, 1983, p. 42-64). Although fortunately, Thailand is the only country in Southeast Asia that has never been directly colonized by any foreign powers (Syamananda, R., 1988) there was still a lot of pressure from Western powers to change the legal and criminal justice system in the free way of choosing our own model, accusatorial system or inquisitorial system. Finally, it is fair to conclude that Thailand has a "mixed" legal system on the truest sense of the world. (Kittipong Kittayarak, 1990, p. 39). As stated in the present Criminal Procedure Code, Article 28 "both prosecutor and ordinary people can accuse to the court. " So, the mixed legal system itself has become problematic in that the output of the criminal justice system cannot be calculated or predicted.