Handout of Asian Criminology
Handout of Asian Criminology
Handout of Asian Criminology
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Handbook of Asian Criminology
Jianhong Liu • Bill Hebenton • Susyan Jou
Editors
Handbook of Asian
Criminology
Editors
Jianhong Liu Bill Hebenton
Department of Sociology Centre for Criminology
University of Macau and Criminal Justice
Taipa, Macau, China University of Manchester
Manchester, UK
Susyan Jou
School of Criminology
National Taipei University
Taipei, Taiwan R.O.C.
v
vi Foreword
innocents about the state of justice. Yet it could also be a splendid indicator
of rising integrity. It is only when cultural demands for fairness become
intense enough to review the accuracy of punishment that such injustice can
be revealed. More global news of such efforts, in a wide range of countries,
spreads across the Internet daily and into Asia. That, in turn, makes interest
in criminology grow as an extension of middle-class empathy for victims of
crime and injustice.
There is another reason why the future of criminology lies in Asia. That
reason is the huge desire for learning found in Asia. In the past 4 years, I
have spent 20 weeks in Asia teaching police and criminologists in Turkey,
Israel, India, Vietnam, Taiwan, Korea, and Australia. In each of these visits
I have been impressed with the curiosity and zeal for learning I have seen.
The passion for reading research articles word for word is impressive. So
are the PowerPoint presentations prepared by the students I have taught,
mastering complex ideas into coherent and logical connections. Their con-
sumption of criminological research may already surpass the rest of the
world’s combined.
The same, of course, cannot yet be said of the production of research, at
least not in the English language journals. The Asian Journal of Criminology
is a bright beacon of such research. But the test of Asian research on crime
will be the growth rate of publications in journals without regions:
CRIMINOLOGY, JOURNAL OF EXPERIMENTAL CRIMINOLOGY,
POLICE QUARTERLY, and POLICING, for example, all of which gladly
accept good research done anywhere on earth. Data from Asian countries
have already appeared in numerous articles, and should grow in future years
as more well-trained PhDs return home from graduate schools in the North
Atlantic.
The pace of research will increase even faster when Asian graduate schools
rise to the volume of US and European schools in annual PhD production.
Such an outcome is not far off. The key to this will be a steady commitment
to empiricism, and a steadfast resistance of the siren call of moral philosophy.
The discursive insights of the latter framework in criminology may merci-
fully jar Asian sensibilities, which may give quantitative empiricism a cul-
tural advantage in any case.
Therein lies a paradox. To the extent that Asia comes to dominate crimi-
nology, it is unlikely to do so in a regional way. Whatever cultural dimensions
criminology has—and they are many—they do not pose a barrier to building
a unified, global science of crime. The effects of family bonds in preventing
crime, for example, appear to be universal, and not culturally dependent. The
deterrent effects of police patrols in crime hot spots may also be universal.
Domestic violence is certainly found in every nation, and education for
women may reduce it wherever it occurs. Asians who study these phenomena
will have as much desire as criminologists from elsewhere to make and test
general propositions, applying to all humans on all continents.
It is therefore possible that someday there will be no Handbook of Asian
Criminology. There may be many handbooks, global in scope. There may be
handbooks that tell readers of distinctive features of law and justice in different
nations or regions. But what there may not be is any claim that criminology
Foreword vii
ix
x Contents
xiii
xiv Contributors
status as merely a recipient—or refractor and In the long view, these matters have their
assimilator—of Western cultural tradition. With origins in the history of the discipline of crimi-
its traditional and intellectual cultures both expe- nology as a scholarly discipline within modern
riencing a renaissance, Asia will provide the and specialized institutions (see Garland 2011;
world with more public goods in the form of Rafter 2009). The international relations within
ideas, principles, and values. The result will criminology, that is, the distribution of scholarly
doubtless be a fusion of cultures to the world. communities, their output and communication
Cultural and religious diversity and its accommo- between them, can, in our view, be heuristically
dation of these many differences is and has been characterized as center–periphery relations (see
a hallmark of the Asian region. Tackling future Medina 2011; Keim 2008; Hebenton and Jou
challenges across the world will require new val- 2012). From a global perspective, criminology as
ues; Asian values attach much importance to practiced in the United States (and maybe a con-
aspects of life, such as diligence, work ethics, geries of other Anglo-phone countries including
family cohesion, and consensus. Such values will United Kingdom) appears to constitute the center
undoubtedly contribute to the eventual pooling of of our discipline, whereas Asia, despite claims
shared values, which in turn will help tackle the for the internationalization and globalization
global challenges of the twenty-first century, of the discipline, occupies part of a periphery.
including crime control efforts. One potentially useful conceptual framework
As criminologists, we know that crime follows for thinking about this matter is illustrated in
opportunity and is embedded by processes of glo- Fig. 1.1.
balization, economic growth, conflict, and social The three dimensions of scientific develop-
change; this is no less so in the Asian region. In ment/underdevelopment; autonomy/dependency;
Asia and elsewhere the interdependence of nation and centrality/marginality are all empirically
states has never been greater, and the necessary inter-related. For analytic purposes, however, we
quest for security, both domestically and exter- can tease them apart. If we consider the problem
nally, remains as pressing as ever (Broadhurst of scientific development, this requires an appro-
2006). The will to understand the operation of dif- priate material, institutional, and individual basis.
ferent criminal justice systems is also now more Lack of the necessary material infrastructure,
crucial than ever, as nations rely increasingly on including governmental sponsorship of research
mutual assistance in criminal matters. What are and an appropriate political climate, hinders
the crime problems of Asia? In what ways do development. Authorities attitude to access to
Asian countries respond? These questions pose official data and publishing of findings also
practical challenges for law makers and policy applies (we can witness this in the context of the
officials, but also of course for criminologists in practice of criminological research in, for
Asia; and more generally draw our gaze to the instance, England and Wales, Wilkins (1984)
development of the discipline of criminology referring to the 1980s and Radzinowicz (1994)
itself in Asia. In spite of the clear evidence of referring to the 1990s). Institutional development
institutional growth and significance of criminol- requires sufficient general funding and adequate
ogy in Asia, as Liu (2009), the current President income possibilities for researchers. This first
of the Asian Criminological Society reminds us: dimension, scientific development, is mainly
… the pace of growth is quite slow compared with determined by external factors such as availabil-
the rapid development of criminology in North ity of funding, scientific and higher education
America and Europe. Understanding the develop- infrastructures, and local academic cultures.
ing criminology in Asia requires an equally good A second problem refers to the conditions of
understanding of the status of criminology in Asia,
of the features of Asian cultures and societies, of existence of criminology, namely the dimension
the special features of crime and crime control in of autonomy or dependency. At an ideal-type
Asia, and of the challenges and opportunities for level, an autonomous criminology contains the
criminology in Asia. (Liu 2009, p. 2) capacity for self-reproduction and autonomous
1 Progress of Asian Criminology: Editors’ Introduction 3
Development Underdevelopment
Autonomy Dependency
Centrality Marginality
development. The structural material factors determined by processes key to the international-
underlying the first dimension described earlier ization of the discipline; particularly, scientific
make the strength of a center (such as USA and journal publication policies combined with
Europe) dominant in the largely unidirectional English as the lingua franca of international sci-
and uncritical flow of criminological knowledge. ence. In this sense, of course, our own Handbook
Dependency requires researchers from the Asian of Asian Criminology and its associated findings
region to rely upon their equivalents in the center are part of this “internationalization” context. By
for key concepts and theoretical capital, reducing these lights, publishing in the English language
the contribution of the periphery to a kind of means being accountable to “international” stan-
“testing ground for external validity” of such dards, yet those in the periphery face genuine
ideas. Other indicators of this dimension include hurdles of budgets and often access to sufficient
the origin of higher degrees obtained by univer- criminal justice system data to produce work of
sity academic staff and researchers and the con- sufficient quality to meet “international” stan-
struction of the university academic criminology dards of recognition. More broadly, these exter-
syllabus. Of course, this second dimension of nal demands may diminish the periphery’s
autonomy or dependency can largely be seen as a willingness to engage with local problems, con-
product of the scientific process itself (rather than stantly being required to justify their research
external factors). Networks and collaboration are and findings in a primarily center-focused
also often illustrative of this dimension. Scholarly context.
productivity at least in terms of English language When one considers Asian criminological
outputs at the individual level is “highly depen- research, the general impression these days is
dent on accessing professional international net- that it has gradually been on an upward trajectory
works” (Teodorescu 2000, and as noted by in terms of quantity and quality; as evidence, one
Medina 2011). Finally, a third problem hinges on can take country-level reviews of research in
the problem of centrality and marginality, which English language outputs, for example, Liu
describes the relationship between existing crim- (2007) and Zhang et al. (2008) in relation to
inological communities and “international schol- People’s Republic of China; or Hebenton and Jou
arship.” Manifestations of marginalization (2005, 2012) in the case of Taiwan; or Chui and
include: lack of visibility in internationally acces- Lo (2008) in respect of Hong Kong. Capacity
sible research databases of published literature, building is also evident—developments such as
the impact of unequal division of research labor, the founding of the Asian Journal of Criminology
and the fact that center studies the periphery, and in 2006 by Springer Publishers, and the for-
the corollary that the center is rarely the object of mal establishment of the Asian Criminological
study by the marginal. All these outcomes are Society in Macao in December 2009, and with a
4 J. Liu et al.
subregional focus, the Association of Chinese comparators, Hong Kong (China SAR), Japan,
Criminology and Criminal Justice in the US Korea (S), PR China, Philippines, and Taiwan.
(ACCCJUS), established at the San Francisco The authors, using the four premier e-databases
meeting of the American Society of Criminology covering criminology and the social sciences
in November 2010. An increasing number of (Criminal Justice Abstracts, The US National
Asian scholars are now doing research that Criminal Justice Reference Service, Thomson-
focuses on both Asian and non-Asian topics. An Reuters Web of Knowledge, and PsychINFO),
increasing number of scholars of non-Asian ori- identified almost 700 separate English language
gin are also conducting research relating to Asian publications. Within the discipline of criminology
phenomena. Details of the work carried out by (as arguably in all fields of the social sciences),
various scholars can be found in different publi- publications vary in terms of status and impor-
cations, which are becoming increasingly visible tance. One measure commonly used is the ISI/
through the prism windows of the new profes- Thomson-Reuters bibliometric, producing among
sional associations mentioned above and through other things a “journal impact factor.” According
focused publications (for example, the forthcom- to this, the journal impact factor is the average
ing Handbook of Chinese Criminology, edited by number of times articles from the journal which
Cao et al. 2013, forthcoming). have been published in the past 2 years have been
Despite this, however, there is countervailing cited in the Journal Citation Reports (JCR) year. If
news on the broader matter of Asia and interna- a journal has a higher impact factor, it means that
tionalization. For example, Barberet (2001, 2007) the journal is often cited and is thus “more impor-
used a content analysis to show that comparative tant.” The 5-year journal impact factor is the aver-
research involving two or more countries occurred age number of times articles from the journal
in only 5.8% of all American Society of published in the past 5 years have been cited in the
Criminology presentations in the 1990s (this work JCR year. This measure is understood to be more
has not been repeated for the new decade, as far as stable than the 1-year figure. There are 31 ISI/
the authors know). Few undergraduate university Thomson-Reuters Web of Knowledge “criminol-
programs in the United States have an international ogy & penology” journals, and Hebenton and Jou
criminal justice course. The teaching of compara- looked at the performance of selected Asian com-
tive methodology is also notably absent from the parators across the “top 20” journals. A number of
criminology curriculum in many universities interesting features were apparent from the analy-
(Barberet 2001/7). The International Division of sis which presents cumulative proportions for the
the American Society of Criminology, is still rela- Asian comparators. Hong Kong had by far the
tively small, as is the International Section of the largest proportion of papers in the 1–20 rankings;
Academy of Criminal Justice Sciences. Coverage some way behind come Japan and PR China. The
of international scholars in US textbooks is still Philippines had the lowest proportion. Only Hong
rare. The proportion of international articles pub- Kong had a number of publications in the 1–5
lished in one of our field’s leading journals, rankings over the period under study. Turning to
Criminology, ranged from 0 to 18% in the 1990s, Taiwan, of the 54 SSCI papers identified, only one
averaging 7.4% (Barberet 2001). In relation to of those had been placed in the “top 5”; Taiwan
Asian countries as an object of study, the analysis had a comparatively small proportion in the “top
of ASC presentations in the 1990s (N = 8,287), 10” over the period under review, but rising to
revealed a rank order of Japan (0.42%), China around one-third cumulatively in the “top 20”
(0.41), Taiwan (0.17), Hong Kong (0.12), Korea journals. Apart from divergent performance across
(S) (0.08), and Philippines (0.06). A more recent the Asian region, the authors conclude that the
study (Hebenton and Jou 2012) of Asia’s interna- empirical consequences of center–periphery rela-
tional criminological research “footprint” evi- tions are also visible in these findings and that
dences the strength and diversity of publications these too need greater acknowledgment and require
over the last decade, 2000–2010. They chose six fuller examination and understanding.
1 Progress of Asian Criminology: Editors’ Introduction 5
Wilkins, L. T. (1984). UK/USA—contrasts in criminol- Zhang, L., Messner, S., & Liu, J. (2008). A critical review
ogy: a personal view. Howard Journal of Criminal of recent literature on crime and criminal justice in
Justice, 23, 11–23. China: Research findings, challenges and prospects
Zhang, L. (2011). Transferring western theory; a com- (Introduction). Crime, Law and Social Change,
parative and culture-sensitive perspective of crime 50(3), 125–130.
research in China. In C. Smith, S. X. Zhang, &
R. Barberet (Eds.), Routledge handbook of interna-
tional criminology. Abingdon: Routledge.
Part I
Types of Crime in Asia
Homicide in Asia
2
Mengyan Dai
Fig. 2.1 Intentional homicide, rate per 100,000 population, by subregion, 2004 (retrieved online from http://www.
unodc.org/images/data-and-analysis/homicide_rate_map.pdf)
a few categories such as total homicides, total collects homicide data from a variety of data
intended homicides, attempted intended homi- sources, including data collected by UN-CTS,
cides, and unintentional homicides. Different data collected by other cross-national crime sta-
countries may include or exclude euthanasia, tistics sources such as Interpol and Statistical
infanticide, assisted suicide, or assault resulting in Office of the European Communities, interna-
death. Unlike Interpol and UN data which collect tional public health data such as data collected by
homicide data from criminal justice agencies in WHO and Pan American Health Organization,
member nations, WHO data are based on body and 33 national law enforcement and criminal
counts (i.e., on cause-of-death reports submitted justice data sources. One of the strengths of this
by participating nations) instead of incidents. dataset is that all sources used are fully refer-
Further, WHO homicide data do not include enced in the dataset and a methodological descrip-
attempted or unintentional homicides (Marshall tion is also provided (Harrendorf et al. 2010).
and Block 2004). Among these three sources of According to the IHS dataset, in 2004 the
cross-national comparative homicide data, the world average homicide rate was 7.6 per 100,000
WHO data are widely believed to be the most valid population. Homicide rates (per 100,000 popula-
(Gartner 1990; Kalish 1988; Messner and tion) in 2004 for the 16 subregions of East Africa,
Rosenfeld 1997). North Africa, South America, Central Asia and
The United Nations Office on Drugs and Transcaucasian Countries, East Asia, Near and
Crime (UNODC) has developed the International Middle East/South West Asia, South Asia, East
Homicide Statistics (IHS) which provides homi- Europe, South East Europe, West and Central
cide statistics in 198 countries and territories Europe, and Oceania are presented in the map in
from 2003 to 2008 (Harrendorf et al. 2010). The Fig. 2.1. The map also suggests that the highest
most recent UNODC homicide statistics can be homicide levels are found in the Americas and
found in its new publication, The 2011 Global Africa region, with the lowest homicide levels
Study on Homicide. The objective of this interna- generally in countries of Europe. Homicide rates
tional statistics is to improve the availability of in Asia are also relatively low. The homicide data
crime and criminal justice information and to by country shows that in 2004 Kazakhstan,
expand the knowledge of crime trends. UNODC Cambodia, Democratic People’s Republic of
2 Homicide in Asia 13
Korea, Myanmar, and Philippines had the highest intentional homicide data here between countries
estimated homicide rates in Asia, while Hong and regions reflect not only the different numbers
Kong, Japan, Qatar, and United Arab Emirates of killings across areas but also the extent to which
had the lowest. countries and regions classify different types of
It should be noted that the IHS dataset does not killing as homicide (UNODC 2004).
include killings in armed conflict committed by
groups of up to several hundred members.
Therefore, the homicide data presented here 2.3 Recent Homicide Trends in Asia
should be interpreted with caution in countries
affected by armed conflict. It is also important to The UNODC’s (2010) international homicide
note that the IHS dataset is about intentional data can be used to depict the changes in homi-
homicide, that is, unlawful death purposefully cide rates over time in many countries.
inflicted on a person by another person. In other However, as explained above, comparisons
words, negligent homicides are not included. between countries should be made with cau-
Thus, the method used by IHS captures the most tion. In addition, data recording method in one
basic commonality between the various data country may also change over time. The aver-
sources. Further, because of differences in the age intentional homicide rates for countries in
definition of homicide, countries may or may not Asia and Oceania from 2003 to 2008 are pre-
count offenses such as assault leading to death, sented in Fig. 2.2. Due to the incomplete infor-
euthanasia, infanticide, or assistance with suicide mation of some countries, not all the countries
in the homicide data. As a result, the differences in are included. The homicide trends in recent
Fig. 2.2 Average international homicide rates for countries in Asia and Oceania (2003–2008) (Harrendorf et al. 2010)
14 M. Dai
Table 2.1 Homicide trends in Central Asia and Transcaucasian countries, 2003–2008 (UNODC 2010)
2003 2004 2005 2006 2007 2008
Public Public Public Public Public Public
Country Police health Police health Police health Police health Police health Police health
Armenia 2.48 1.96 2.45 1.79 2.44 1.89 2.31 2.53
Azerbaijan 2.20 2.56 2.40 1.87 2.27 2.23 2.04
Georgia 6.60 6.22 3.67 9.03 7.32 7.57
Kazakhstan 13.28 14.74 13.85 15.99 11.87 14.33 11.30 13.28 10.75 12.70 10.56
Kyrgyzstan 8.19 6.04 8.07 6.31 9.40 7.24 8.44 6.38 7.78
Tajikistan 2.57 2.90 2.20 2.34 2.40 1.88 3.44 2.29
Turkmenistan 8.78 7.81 8.82 3.34 2.89
Uzbekistan 2.74 3.70 3.54 3.46 3.24
years suggest that on average, homicide rates the police data and public health data, both
are going down slowly, and there have not been data are presented when available. Information
abrupt increases or decreases from year to year. of the data sources for each country can be
The country level data collected by UNODC obtained at the website of UNODC. Homicide
are also grouped by subregion and presented in rate is the number of homicide per 100,000
Tables 2.1–2.4. Because of the discrepancies in population.
2 Homicide in Asia 15
Table 2.3 Homicide trends in near Middle East/South West Asia, 2003–2008 (UNODC 2010)
2003 2004 2005 2006 2007 2008
Public Public Public Public Public Public
Country Police health Police health Police health Police health Police health Police health
Afghanistan 3.44
Bahrain 0.43 0.98 1.12 0.55 0.94 0.53 0.77
Bangladesh 2.59 7.79 2.24 2.65 2.45 2.56
Bhutan 0.81 2.37 4.26 1.69 1.36
India 2.99 3.02 5.50 2.89 2.83 2.77
Iran 2.60 2.88 2.49
Iraq 7.31
Israel 3.02 2.63 4.75 2.43
Jordan 1.91 1.83 6.83 1.20 1.74
Kuwait 1.15 1.38
Lebanon 2.46 2.30 0.56
Occupied 2.68 3.99 3.85
Palestinian
Terr.
Oman 0.87 1.98 0.66 0.65
Pakistan 5.89 5.99 3.40 5.81 5.93 6.10 6.81
Qatar 0.55 0.75 1.00 0.68 0.20 2.64 1.01
Saudi Arabia 1.03 3.22 0.92 0.85
Syrian Arab 1.05 1.14 2.57 1.08 1.21 3.03
Republic
United Arab 1.20 0.69 0.48 1.37 0.92
Emirates
Yemen 3.55 3.16 2.50 4.49 4.41 4.03
diversity, democracy, modernization, social stress related homicide rates for children, while other
and support, and many others. This section Asian countries in the study had the lowest
reviews the empirical literature that has studied firearm-related homicide rates. However, incon-
homicide rates in Asian countries. sistent with the findings reported by Harrendorf
et al. (2010), Israel did not have the highest total
homicide rate. In fact, among the Asian countries
2.5 Use of Firearm in Homicide studied, Singapore had the highest nonfirearm-
related homicide rate for children and also the
The availability of firearms often plays an impor- highest total homicide rate for children.
tant role in homicide rates. In the UNODC 2010
report of International Statistics of Crime and
Justice, it is found that areas with high homicide 2.6 Capital Punishment and
rates are usually the areas with the highest per- Homicide
centage homicide with firearms (Harrendorf et al.
2010). Data from Fig. 2.3 suggest that Asian Research using homicide data has explored the
countries are similar to European countries in deterrent effect of capital punishment on homi-
terms of the percentage of homicides with firearm. cide. The major concern of this body research is
In contrast, Americas have the highest percent- whether the threat of execution deters homicide
age of homicides with firearm in the world. better than other criminal sanctions. As the
In a cross-national study on homicide among most serious violent crime, homicide usually
children, Krug et al. (1998) specifically examined receives the harshest punishment in the crimi-
the homicide rates among children in the USA nal justice system, and when available, death
with those in other countries. In this study, the penalty is often used. Often, the public are
selected countries were high-income countries strongly supportive of a death penalty for mur-
defined by World Bank in 1994, among which der (Johnson 2006).
Asian countries and regions included Singapore, According to Zimring and Johnson (2008),
Japan, Israel, Taiwan, and Hong Kong. The data Asian countries provide a better context to explore
about childhood homicide were between 1990 the deterrent effect of capital punishment. First,
and 1995. Krug et al. found that among the Asian there is a great variety of political systems and
countries selected, Israel had the highest firearm- policies toward capital punishment in Asia.
Fig. 2.3 Percent of homicide committed with a firearm, 2003–2008 (Harrendorf et al. 2010)
2 Homicide in Asia 17
men in their 40s and 50s. In fact, Japan’s homi- ments. Further, In Japan, homicide was a very
cide rate in 2000 was higher among men in their risky way of resolving conflict. First, there is a
50s than among males aged 20–24. Further, high probability that would be assailants will
young Japanese males, those born after 1960, themselves be injured by acts of self-defense. In
committed fewer murders than previous cohorts Japan, weapon is used in most homicides, and
of young males did. Data showed that young about 60% of all instruments of death are knives.
Japanese males now committed one-tenth as In contrast, guns are used in only about 5% of
many homicides as their counterparts did in 1955. homicides. Second, the homicide clearance rate
Thus, young Japanese males not only commit in Japan is extremely high, and it is very likely
fewer murders than youth in other countries, they that a successful killer will be caught by the
kill far less frequently than their predecessors did police. Data show that the Japanese police clear
in previous decades. about 96% of all homicides reported to the police,
It is not common to find countries where the while the chance of getting away with murder is
propensity to kill peaks so late. However, about 1 in 3 for America, in 4 for France, and just
Johnson (2008) found that South Korea resem- 1 in 25 for Japan (Finch 2001). For the above rea-
bled Japan. Johnson collected data from the sons, it is argued that murder is relatively rare in
reports by the Supreme Prosecutors Office of Japan.
South Korea. According to the official data, in
2004, only 13.1% of suspects indicted for homi-
cide in South Korea were aged 30 or under. 2.8 Population Diversity and
Compared with the homicide rate in Japan, Homicide
South Korea’s total homicide rate (excluding
attempts) was a little higher at the rate of 1.67 Population diversity can be described along two
per 100,000 in 2004. Taken together, the findings dimensions: heterogeneity and inequality
on homicide from Japan and South Korea (Avison and Loring 1986). Heterogeneity is
suggest that how homicide rates are patterned based upon the distribution of a population
can vary across countries, and the different among groups in terms of nominal parameters
patterns in Japan and South Korea are indeed such as ethnicity, race, language, or religion.
noteworthy. Inequality refers to status distribution in terms
The Japanese decline is a notable trend, of a graduated parameter such wealth, income,
because homicide tends to increase during the or education (Blau 1977).
industrialization process (LaFree and Drass Cross-national studies have often reported a
2002). However, very limited research has stud- positive correlation between income inequality
ied the homicide drop in Japan and especially the and homicide rates. This correlation suggests that
homicide drop among young Japanese. This body in a country where income inequality is high,
of research attempted to offer some explanations. homicide rate is also high, and this correlation
For example, Roberts and LaFree (2004) studied has been observed by studies employing different
the declining levels of economic stress in postwar samples of nations, different measures of vari-
Japan on homicide rates. Extant explanations also ables, and different control variables (Braithwaite
include social structure (Park 2006) and culture and Braithwaite 1980; Kick and LaFree 1985;
(Komiya 1999). Messner 1980). However, the evidence concern-
Hiraiwa-Hasegawa (2005) developed a risk- ing the effects of heterogeneity on homicide is
assessment explanation. They argue that young less clear.
males became more risk averse in the postwar Using homicide data from the World Health
period. During this period time, income and edu- Organization from 1967 to 1971, Avison and
cational level rose, while inequality and the aver- Loring (1986) examined the impact of income
age number of children per household declined inequality and ethnic heterogeneity on homicide
due to the nation’s postwar economic achieve- rates for a sample of 32 nations and regions. This
2 Homicide in Asia 19
are limited because none of the industrializing inflation, labor disputes, prolonged strikes,
countries in Asia were included in this analysis. terrorist attacks, and other acts of violence.
In the follow-up study by Landau (1997), the
independent variables related to stress included
2.11 Social Stress, Support, and the state of the country and government handling
Homicide (regarding general situation, economic situation,
security situation, and political situation) and
Agnew (1992) points out that failure to achieve personal situation (personal economic situation),
expectations may lead to such emotions as anger, coping, and mood. The independent variables
resentment, rage, dissatisfaction, disappointment, related to national solidarity included solidarity
and unhappiness, which are emotions customar- between ethnic groups, solidarity between reli-
ily associated with strain in criminology. In his gious and secular groups, and readiness for eco-
general strain theory, Agnew emphasized strain nomic sacrifices. This study found that economic
as the key concept for understanding and explain- stress had the most permanent and consistent
ing crime and delinquency in general. Macro- effects over time on homicide, and the effects of
level empirical research has considered violent social solidarity on homicide were stable over
crime to be major possible response to social time. The consistent and permanent effect of
stress. For example, in two comparative analyses economic stress on homicide in both studies is
of social stress in the 50 states of the USA, it is especially noteworthy. The findings are also in
reported that stressful life events were positively line with a wide range of studies connecting
correlated with all seven index crimes. objective economic stress factors such as inflation
Specifically, the higher the state stress level, the and unemployment with homicide.
higher the crime rates for these states (Linsky and
Straus 1986; Linsky et al. 1995).
Israel has been studied to explore the influences 2.12 Suicide and Homicide
of social stress and social support on homicide
and other violent behavior. Landau (1988) inves- There are patterns about suicide and homicide in
tigated at the aggregate level the relationship a society, and some social factors may be corre-
between the subjective perception of social stress lated with both suicide and homicide. In a study
and support and violence (i.e., homicide and rob- of 64 countries and regions, including China,
bery) in Israeli society. The analysis was based Hong Kong, Israel, Japan, Korea Republic,
on monthly data for the years 1967–1979. Violent Singapore, Macau, and other countries in the
crime was positively related to most of the sub- world, He et al. (2003) examined lethal violence
jective stress indicators and negatively related to (i.e., suicide and homicide) during 1989–1993.
the subjective perception of national solidarity. The predictors of this study included factors such
Landau (1997) reexamined the effects of as income inequality, economic development,
social stress and social support on homicide for unemployment rate, and divorce rate.
the years 1979–1993. According to Landau, rep- He et al. (2003) found that income inequality
lication over time was particularly important in and economic development were not related to
the case of Israel, due to the dynamic and highly lethal violence but were related to the tendency
stressful characteristics of this society. The period of suicide over homicide. In particular, high
of 1979–1993 was characterized by major crises inequality reduced the tendency to express frus-
and dramatic events in Israel’s security and econ- tration inwardly against oneself and increased the
omy. The most salient were the war in Lebanon, tendency to express frustration outwardly against
the Palestinian uprising, and the Gulf War. In other people. Further, the economic development
addition, these years witnessed times of eco- increased the tendency to express one’s frustra-
nomic prosperity as well as economic hardship, tion inwardly against oneself and reduced the
recession, dramatic increases in the rate of tendency of expressing one’s frustration against
2 Homicide in Asia 21
others. Finally, they found that divorce increased 1987; Litwin 2004; Riedel and Jarvis 1998). In
both suicide and homicide in the contemporary addition to these studies, Roberts (2008) has
societies of the world. focused on the characteristics of homicides
Consistent with the findings of He et al. in Japan and the categorization of homicide in
(2003), Japan’s homicide and suicide rates are official statistics as an explanation for the much
noteworthy. As a country of one of the lowest higher homicide clearance rate in Japan than in
homicide rates in the world, Japan has a high sui- other countries such as the United States.
cide rate. According to Johnson (2008), postwar Using official summary statistics from 2000 to
developments have made Japan affluent without 2004, Roberts (2008) found that homicides in
creating extreme social inequalities or the con- Japan contained a higher proportion of easy-
centrations of poverty. Empirical research shows to-clear cases, including those with nonfirearm
that homicide problems are usually correlated weapons, family member offenders, and child
with social inequality, and thus homicide is not a victims. First, homicide clearance studies have
serious problem in Japan. During the postwar found that cases involving a firearm weapon are
period, the homicide rate had reduced significantly. less likely to clear than those involving a knife or
In contrast, suicide rate is high in Japan. The strangulation, because of the lack of close contact
combined rate of lethal violence (i.e., homicide with the victim and less physical evidence (e.g.,
and suicide) in Japan exceeds that for every other offender’s hair, blood, and fingerprints) (Regoeczi
industrialized nation, and it is about twice the aver- et al. 2000; Litwin 2004; Puckett and Lundman
age for all industrialized countries (Johnson 2008). 2003; Addington 2006). In Japan, the general
Particularly, males commit about three quarters public is banned from owning firearms. Between
of suicides in Japan, and since 1998 the nation’s 2000 and 2004, only 3.4% of homicides in Japan
suicide rate has risen substantially among several were committed with firearms, and most homi-
subpopulations, including young men (Miyazaki cides were committed with knives, blunt objects,
and Otani 2004). According to Johnson (2008), or by strangulation. In contrast, 65.7% of the
about 40 times more Japanese kill themselves homicides in the United States were committed
than kill other people. with firearms. Second, homicides committed by
known offenders, especially family members,
have much greater chance of clearance than
2.13 Homicide Clearance homicides by strangers (Riedel and Rinehart
1996; Roberts 2007). Offenders in family-related
Clearance rate is a measure of crimes solved by homicides are more likely to confess than offend-
the police, and homicide clearance is usually rel- ers unknown to the victims. Also, family-related
atively high among all the categories of violence. homicides tend to have more potential eyewit-
However, homicide clearance varies across coun- nesses. Third, homicide incidents with child vic-
try, and the Japan’s high homicide clearance rate tims have usually been found to have greater
is remarkable. In a comparative study, Roberts chance of clearance due to the restricted routine
(2008) shows that homicide clearance rates in activities of children (Regoeczi et al. 2000;
Japan and USA are stable between 1994 and Puckett and Lundman 2003; Addington 2006;
2004. However, Japanese homicide clearance Riedel and Rinehart 1996).
rates were around 95% compared with roughly Roberts (2008) also found that categorization
60% in the United States. of homicides in Japanese official statistics
There are a number of reasons for the extremely included attempted homicides and excluded rob-
high homicide clearance rate in Japan. Studies bery-related homicides, which could also explain
have focused on the high level of citizen coopera- the differences between the clearance rate for
tion and the good police–citizen relationship in homicide in Japan and that in other countries. In
Japan which are essential parts of homicide inves- Japan, robbery-related homicide cases were less
tigation (Bayley 1991; Fujimoto 1994; Rake likely than other homicides to be cleared. Between
22 M. Dai
LaFree, G., & Tseloni, A. (2006). Democracy and crime: Puckett, J. L., & Lundman, R. J. (2003). Factors affecting
A multilevel analysis of homicide trends in forty-four homicide clearance: Multivariate analysis of a more
countries, 1950-2000. The Annals of the American complete conceptual framework. Journal of Research
Academy of Political and Social Science, 605, 25–49. in Crime and Delinquency, 40, 171–193.
Landau, S. F. (1988). Violent crime and its relation to sub- Rake, D. E. (1987). Crime control and police-community
jective social stress indicators: The case of Israel. relations: A cross-cultural comparison of Tokyo,
Aggressive Behavior, 14, 337–362. Japan, and Santa Ana, California. The Annals of the
Landau, S. F. (1997). Homicide in Israel: Its relation to American Academy of Political and Social Science,
subjective stress and support indicators on the macro 494, 148–154.
level. Homicide Studies, 1, 377–400. Regoeczi, W. C., Kennedy, L. W., & Silverman, R. A.
Legge, S. (2008). Youth and violence: Phenomena and (2000). Uncleared homicides: A Canada/United States
international data. New Directions for Youth comparison. Homicide Studies, 4, 135–161.
Development, 119, 17–24. Riedel, M., & Jarvis, J. (1998). The decline of arrest clear-
Linsky, A. S., & Straus, M. A. (1986). Social stress in the ances for criminal homicide: Causes, correlates, and
United States. Dover, MA: Auburn House. third parties. Criminal Justice Policy Review,
Linsky, A. S., Bachman, R., & Straus, M. A. (1995). 9, 279–306.
Stress, culture, and aggression. New Haven, CT: Yale Riedel, M., & Rinehart, T. A. (1996). Murder clearances
University Press. and missing data. Journal of Crime and Justice,
Litwin, K. J. (2004). A multilevel multivariate analysis of 19, 83–102.
factors affecting homicide clearance. Journal of Roberts, A., & LaFree, G. (2004). Explaining Japan’s
Research in Crime and Delinquency, 41, 327–351. postwar violent crime trends. Criminology,
Marshall, I. H., & Block, C. R. (2004). Maximizing the 42, 179–209.
availability of cross-national data on homicide. Roberts, A. (2007). Predictors of homicide clearance by
Homicide Studies, 8(3), 267–310. arrest: An event-history analysis of NIBRS incidents.
Messner, S. F., & Rosenfeld, R. (1997). Political restraint Homicide Studies, 11, 82–93.
of the market and levels of criminal homicide: A cross- Roberts, A. (2008). Explaining differences in homicide
national application of institutional-anomie theory. clearance rates between Japan and the United States.
Social Forces, 75, 1393–1416. Homicide Studies, 12, 136–145.
Messner, S. F. (1980). Income, inequality and murder UNODC. (2004). International homicide statistics (IHS).
rates: Some cross-national findings. Comparative Vienna: United Nations Office on Drugs and Crime.
Social Research, 3, 185–198. UNODC. (2010). International homicide data. Accessed
Miyazaki, M., & Otani, A. (2004). Homicide rates: May 1, 2011, from http://data.un.org/Data.aspx?d=U
Japanese people cannot commit murder! The puzzle of NODC&f=tableCode%3A1#UNODC.
the world’s lowest homicide rate. Tokyo: Ota Zimring, F. E., & Johnson, D. T. (2008). Law, society, and
Shuppan. capital punishment in Asia. Punishment and Society,
Park, W. (2006). Trends in crime rates in postwar Japan: 10, 103–115.
A structural perspective. Morioki-shi: Shinzansha. Zimring, F. E., Fagan, J., & Johnson, D. T. (2010).
Potter, D., Goldblatt, D., Kiloh, M., & Lewis, P. (Eds.). Executions, deterrence, and homicide: A tale of two
(1997). Democratization. Cambridge: Polity. cities. Journal of Empirical Legal Studies, 7, 1–29.
Curbing Corruption and Enhancing
Trust in Government: Some Lessons 3
from Singapore and Hong Kong
Table 3.1 Corruption Perceptions Index 2010 of 25 above 70. At the other extreme, Table 3.2 also
Asian countries shows that Laos, Cambodia, North Korea,
Country Rank Scorea Afghanistan, and Myanmar are perceived to be
Singapore 1st 9.3 the five most corrupt Asian countries. The remain-
Hong Kong SARb 13th 8.4 ing 14 countries had percentile ranks ranging
Japan 17th 7.8 from 13.3 for Pakistan, to 68.1 for Macao SAR.
Taiwan 33rd 5.8
Bhutan 36th 5.7
Brunei 38th 5.5
3.3 Public Trust of Politicians
South Korea 39th 5.4
in Asian Countries
Macao SARb 46th 5.0
Malaysia 56th 4.4
China 78th 3.5
As corruption is a serious problem in many Asian
Thailand 78th 3.5 countries, it is not surprising that their citizens do
India 87th 3.3 not have a favorable view of their politicians as
Sri Lanka 91st 3.2 reflected in their distrust of politicians’ honesty.
Indonesia 110th 2.8 Tables 3.3 and 3.4 show that among the 20 Asian
Mongolia 116th 2.7 countries only Singapore and Hong Kong are the
Vietnam 116th 2.7
Timor-Leste 127th 2.5
Bangladesh 134th 2.4 Table 3.2 Control of corruption in 26 Asian countries,
2009
Philippines 134th 2.4
Pakistan 143rd 2.3 Percentile rank Governance score
Nepal 146th 2.2 Country (0–100) (−2.5 to +2.5)
Cambodia 154th 2.1 Singapore 99.0 +2.26
Laos 154th 2.1 Hong Kong SAR 94.3 +1.84
Myanmar 176th 1.4 Japan 87.1 +1.35
Afghanistan 176th 1.4 Brunei 79.0 +0.96
Source: Compiled from http://www.transparency.org/pol- Bhutan 75.2 +0.84
icy_research/surveys_indices/cpi/2010/results Taiwan 72.4 +0.57
a
The score ranges from 0 (highly corrupt) to 10 (very South Korea 71.4 +0.52
clean) Macao SAR 68.1 +0.40
b
Hong Kong and Macao are Special Administrative Malaysia 58.1 +0.02
Regions of China
Thailand 51.0 −0.23
India 46.7 −0.33
a score above 7.0, namely, Singapore (9.3), Hong Sri Lanka 44.8 −0.36
Kong (8.4), and Japan (7.8). Among the other 22 Vietnam 36.7 −0.52
countries, Taiwan (5.8), Bhutan (5.7), Brunei China 36.2 −0.53
Darussalam (5.5), South Korea (5.4), and Macao Indonesia 28.1 −0.71
SAR (5.0) are the only five countries with a CPI Philippines 27.1 −0.71
Nepal 25.2 −0.75
score of 5.0 and above. At the other extreme,
Mongolia 23.8 −0.77
there are 12 countries with CPI scores below 3.0,
Bangladesh 16.7 −0.96
with Myanmar (1.4) and Afghanistan (1.4) being
Timor-Leste 15.7 −0.99
perceived as the most corrupt Asian countries.
Pakistan 13.3 −1.10
Similarly, Table 3.2 provides the 2009 data on Laos 9.5 −1.14
the World Bank’s Control of Corruption gover- Cambodia 8.6 −1.18
nance indicator for 26 Asian countries and North Korea 3.3 −1.39
confirms that Singapore, Hong Kong, and Japan Afghanistan 1.4 −1.57
are the three least corrupt countries in Asia. Myanmar 0.0 −1.75
Brunei, Bhutan, Taiwan, and South Korea are the Source: Compiled from http://info.worldbank.org/gover-
other four Asian countries with a percentile rank nance/wgi/mc_chart.asp
3
Table 3.4 Ranking of 20 Asian countries by average Table 3.5 Level of Institutional Trust in Singapore, 2006
scores for public trust of politicians
Institution Mean scorea Rank
Average Police 1.89 1
Country Total score score Ranking Military 1.91 2
Singapore 44.96 6.42 1 Prime minister 1.94 3
Hong Kong 34.22 4.88 2 National government 1.94 3
Brunei 4.40 4.40 3 Law courts 1.96 5
China 25.6 3.65 4 Civil service 1.99 6
Vietnam 24.87 3.55 5 Parliament 2.07 7
Malaysia 24.65 3.52 6 Town councils 2.13 8
Taiwan 22.56 3.22 7 National television 2.14 9
Cambodia 5.60 2.80 8 National newspapers 2.17 10
Japan 19.19 2.74 9 International television 2.20 11
South Korea 18.50 2.64 10 Political parties 2.45 12
Timor-Leste 5.20 2.60 11 Nongovernmental organizations 2.73 13
Thailand 18.02 2.57 12
Source: Tan and Wang (2007, p. 2)
Indonesia 17.36 2.48 13 a
The mean score ranges from 1 (high level of trust) to 4
Sri Lanka 11.00 2.20 14 (low level of trust)
Pakistan 6.40 2.13 15
India 14.05 2.00 16
Philippines 12.32 1.76 17 scores of below 2.0. The largest category consists
Nepal 3.50 1.75 18 of these nine countries with average scores between
Mongolia 3.40 1.70 19 2.0 and 3.0 namely: Cambodia, Japan, South
Bangladesh 7.90 1.58 20
Korea, Timor-Leste, Thailand, Indonesia, Sri
Source: Compiled from Table 3.3 Lanka, Pakistan, and India.
The 2006 Asian Barometer Survey on democracy
two countries which have consistently been and governance in Singapore has confirmed the
ranked as first and second respectively for the Global Competitiveness Report’s finding that
public trust of politicians. Singaporeans have a high level of trust in their poli-
Table 3.4 shows that Singapore is first with an ticians. Table 3.5 shows that the 1,002 Singaporeans
average score of 6.42, and Hong Kong is second in the survey had the highest degree of trust in the
with an average score of 4.88. Brunei is third police, followed by the military, prime minister and
based on its score of 4.40 for 2009–2010 only as national government (joint third rank), law courts,
it was not included in the previous surveys. civil service, parliament, town councils, national
Philippines, Nepal, Mongolia, and Bangladesh television, and the national newspapers, to name the
are the four countries with the lowest average top ten trusted institutions in Singapore.
In Hong Kong, the 2001 East Asian Barometer constitute an important cause of corruption in
(EAB) survey asked respondents how much trust Mongolia as manifested in the difficult living
they had in eight public institutions. Table 3.6 conditions of judges in the countryside where “one
shows that the military and courts were the most out of three judges does not have an apartment.
trusted institutions (82%), followed by the civil Consequently, some judges live in their office,
service (70%), television (69%), national govern- which is clearly not desirable and does not enhance
ment (64%), parliament (62%), local government the status of the judiciary” (McPhail 1995, p. 45).
(55%), and political parties (29%). According to In his survey of civil service pay in South Asia,
Lam and Kuan (2008, p. 201), the high level of David Chew (1992, p. 78) found that “despite salary
distrust of political parties among the Hong Kong revisions and dearness allowances, starting basic
respondents can be attributed to “their perceived salaries of the five kinds of civil servants in South
ineffectuality and hypocrisy.” Asia remained very low in December 1987 by
international standards.” According to surveys
conducted by Transparency International from
3.4 Causes of Corruption in Asian November 2001 to May 2002 in five South Asian
Countries countries, the respondents in Pakistan, Nepal, and
Sri Lanka were more likely than their counterparts
Why is corruption such a serious problem in Asian in Bangladesh and India to identify the low wages
countries? Leslie Palmier (1985, p. 272) has of employees in the seven sectors as contributing
identified three important causes of corruption to corruption (Thampi 2002, p. 9, 20, 23, 26, 28,
from his comparative analysis of anti-corruption 31, 34, 37). Hence, it is not surprising that the
measures in Hong Kong, India and Indonesia. Third Pay Commission (1970–1973) in India
According to him: asserted that “the payment of a salary which does
Bureaucratic corruption seems to depend not on not satisfy the minimum reasonable needs of a
any one of the [three] factors identified, but rather government servant is a direct invitation to corrup-
on the balance between them. At one extreme, with tion” (Das 2001, p. 105).
few opportunities, good salaries, and effective In 2002, Thailand’s police chief, General Sant
policing, corruption will be minimal; at the other,
with many opportunities, poor salaries, and weak Sarutanond, bluntly admitted that Thai policemen
policing, it will be considerable. “are undereducated and underpaid and that is the
reason why they are corrupt.” He explained that
In other words, corruption results from the the starting monthly salary of commissioned police
combined effect of ample opportunities, low salaries, officers was 6,000 baht (US$153) instead of the
and the low probability of detection and punish- 20,000 baht (US$500) needed monthly for meeting
ment for corrupt behavior. Thus, to combat their expenses in a large city (Straits Times 2002,
corruption effectively, the governments in the p. A5). In the Philippines, many of the employees
Asian countries should introduce reforms to of the Bureau of Immigration were under-qualified
minimize if not eliminate these three causes. (they were hired because of nepotism or political
Surveys conducted in many Asian-Pacific patronage) and paid “starvation wages.”
countries confirm the significance of low salaries Consequently, they succumbed to bribery because
as this has been identified as a key cause for cor- it was “difficult to survive without accepting
ruption by the respondents. For example, a 2001 bribes” as almost everyone was also doing it (Chua
national survey of 2,300 respondents in Indonesia and Rimban 1998, p. 154). Many civil servants in
found that low salaries were identified as the most the Philippines supplement their low wages by
important cause of corruption by 51.4% of the vending within the office, holding a second job,
civil servants, 36.5% of the businesspersons, and teaching part-time, practicing their profession
35.5% of the public (Partnership for Governance after office hours, engaging in research and
Reform in Indonesia 2001, p. 39). Similarly, the consultancy projects, and resorting to petty cor-
low salaries of political leaders and civil servants rupt practices (Padilla 1995, pp. 195–202, 206).
30 J.S.T. Quah
Red tape and cumbersome administrative eliminating 5,226 or 48% of the 11,115
procedures provide ample opportunities for administrative regulations (Cho 1999, p. 3). In
corruption. Red tape was an important cause of addition to the RRC’s efforts, the Seoul
corruption in South Korea in the past as regulation Metropolitan Government launched an Online
was usually accompanied by red tape. A com- Procedure Enhancement for Civil Applications
pany had to submit 44 documents to apply for (OPEN) system in April 1999 to improve civil
permission to build a factory. Consequently, it applications covering 54 common procedures by
required 3 years to build a factory in South Korea filing through the Internet. The OPEN system has
instead of the two and half months required in enhanced the transparency of civil procedures
Austin, Texas. Red tape in South Korea resulted and reduced the opportunities for corruption
in delay and increased the costs in time and (Moon 2001, p. 41).
money for business firms, which resorted to brib- The best way to illustrate the linkage between
ing civil servants to reduce delay by expediting red tape and corruption is to show that those
their applications for permits or licences (Kim Asian countries which are not afflicted by red
1997, p. 261–262). tape as reflected in the ease in doing business are
South Korea’s experience has shown that it is seen to be less corrupt than those countries which
possible to reduce the opportunities for corrup- suffer from cumbersome administrative regula-
tion by cutting red tape. In 1998, President Kim tions and procedures. Table 3.7 shows that the
Dae-Jung established the Regulatory Reform level of perceived corruption in Singapore, Hong
Committee (RRC) to make South Korea more Kong, and Japan, where it is easier to do busi-
business friendly by eliminating unnecessary or ness, is much lower than in India, Philippines,
irrational regulations which hindered business and Cambodia, where it is much more difficult to
activities or interfered in people’s lives. After its conduct business because of the greater amount
first year of operations, the RRC succeeded in of red tape. For example, in Cambodia, which is
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 31
ranked 154th on the 2010 CPI with a score of 2.1, corruption as he found that a person committing
it takes 85 days to start a business, 709 days to a corrupt offence in Hong Kong was 35 times
deal with construction permits, and 56 days to more likely to be detected and punished than his
register a property (World Bank 2010, p. 153). Filipino counterpart.
Thirdly, corruption thrives in those Asia-Pacific In short, corruption is a serious problem in
countries where the public perceives it to be a many Asian countries today because of the com-
“low risk, high reward” activity as corrupt offend- bined impact of the low salaries of civil servants
ers are unlikely to be detected and punished (Quah and political leaders, the ample opportunities cre-
2003a, p. 13). According to Palmier, corruption in ated for corruption by red tape, and the low prob-
Indonesia was rampant because it was tolerated as ability of detecting and punishing corrupt
corrupt officials were seldom punished. He con- offenders. Indeed, the inability of most of these
cluded that while there was strong policing against countries to curb corruption effectively reflects
corruption in Hong Kong, “policing is very poor the lack of political will of their governments to
in Indonesia, and insufficient in India” (Palmier enforce impartially the anti-corruption measures
1985, p. 280). Mohammad Mohabbat Khan (1998, as the “big fish” (rich and powerful) are usually
p. 36) has attributed the high level of corruption in protected from prosecution for their corrupt mis-
Bangladesh to the low probability of punishment deeds. This lack of political will is the most
for corrupt officials who are seldom dismissed important reason for the rampant corruption in
from the civil service. Similarly, a comparative Asian countries.
study of Bangladesh, India, and Sri Lanka found In addition to the impartial enforcement of the
that “official punitive action has seldom been anti-corruption laws by the anti-corruption
taken against corrupt officials” in spite of the large agency, there are two other indicators of a gov-
number of corruption reports (Ahmad and ernment’s political will in curbing corruption.
Brookins 2004, p. 29). More specifically, Ahmad First, there must be comprehensive anti-corrup-
and Brookins (2004, p. 24) found that only 15% tion legislation to prevent loopholes and periodic
of the 119 corruption cases in India resulted in review of such legislation to introduce amend-
official punitive action, followed by 10% of the 77 ments whenever necessary. A glaring example of
corruption cases in Bangladesh, and 4% of the 91 lack of political will in fighting corruption is the
corruption cases in Sri Lanka. 15-year delay in passing the draft Anti-Corruption
In contrast, corruption is not a serious prob- Law in Cambodia. This bill, which was originally
lem in those Asian countries where corruption is introduced in 1994, was not enacted by the gov-
viewed as a “high risk, low reward” activity as ernment’s official deadline of June 2006
corrupt offenders are likely to be caught and (MacLean 2006, p. 17; Ford and Seng 2007, p.
severely punished. In Singapore, the penalty for 186). On May 16, 2006, a petition with more than
corruption is imprisonment for 5 years and/or one million signatures and thumbprints was pre-
a fine of S$100,000 (US$81,673 on May 1, 2011). sented to the Cambodian National Assembly
This penalty is impartially enforced on those requesting its members to urgently enact an anti-
found guilty of corruption in Singapore regard- corruption law. However, this plea fell on deaf
less of their position or status in society (Quah ears as Lao Mong Hay (2008) lamented that
2007a, p. 20, 37). The anti-corruption laws are “deadlines set for the enactment of that law have
applied “strictly and consistently” in Singapore, repeatedly passed and the final draft has not yet
and high-ranking corrupt officials are “dealt with seen the light of day.” In October 2006, Prime
in Singapore with a severity rarely seen else- Minister Hun Sen justified the delay in terms of
where” (Straits Times 1996, p. 3). A comparative his government’s intention that the law should
study by Robert P. Beschel Jr. (1999, p. 8) of the “be as close to perfect as possible, with workable
successful prosecution of corrupt offenders in implementation guidelines” drafted on the basis
Hong Kong and the Philippines in 1997 confirms of new penal codes (Brunei Times 2006). This
the critical role played by punishment in curbing delay in enacting the Anti-Corruption Law
32 J.S.T. Quah
Table 3.8 Personnel and budgets of nine Asian anti-corruption agencies in 2008
Anti-corruption Staff–population Per capita
agency Personnel Budget Population ratio expenditure
Hong Kong 1,263 US$97.7 million 7.3 million 1:5,780 US$13.40
ICAC
Singapore CPIB 86 US$11.2 million 4.83 million 1:56,163 US$2.32
South Korea 466 US$61 million 48.4 million 1:103,863 US$1.26
ACRC
Mongolia 90 US$3.1 million 2.7 million 1:30,000 US$1.15
IAAC
Thailand 740 US$21.3 million 64.3 million 1:86,892 US$0.33
NACC
Philippines 1,007 US$19.6 million 89.7 million 1:89,076 US$0.22
OMB
Taiwan 840 US$4.02 million 22.9 million 1:27,262 US$0.18
MJIB
Indonesia 540 US$31.8 million 234.3 million 1:433,888 US$0.14
KPK
India 4,874 US$52.1 million 1,186.2 million 1:243,373 US$0.04
CBI
Source: Compiled from Quah (2011, pp. 455–456, Tables 12.9 and 12.10)
after 15 years clearly reflects the Cambodian Investigation (CBI) in India has the lowest per
government’s lack of political will in curbing capita expenditure of US$0.04 and the second
corruption (Quah 2007b, p. 7). Hence, it is not highest staff–population ratio of 1:243,373.
surprising that, as indicated earlier, corruption is South Korea’s Anti-Corruption and Civil Rights
rampant in Cambodia. Commission (ACRC) is third with a per capita
The second indicator of a government’s political expenditure of US$1.26 but ranks seventh with a
will is its provision of adequate legal powers, staff–population ratio of 1:103,863. Mongolia’s
personnel and budget to enable the anti-corruption Independent Authority Against Corruption (IAAC)
agency to perform its functions effectively. is ranked fourth with a per capita expenditure of
Table 3.8 provides comparative data on the US$1.15 and third with a staff–population ratio
budgets and personnel of nine anti-corruption of 1:30,000. The National Anti-Corruption
agencies in Asia as well as their staff–population Commission (NACC) in Thailand ranks fifth with
ratios and per capita expenditures. Among the a per capita expenditure of US$0.33 and a staff-
nine anti-corruption agencies, Hong Kong’s population ratio of 1: 86,892. The Office of the
Independent Commission Against Corruption Ombudsman (OMB) in the Philippines is also
(ICAC) fares best with a staff–population ratio of poorly funded with a per capita expenditure of
1:5,780 and a per capita expenditure of US$13.40. US$0.22, and under-staffed with an unfavorable
Singapore’s Corrupt Practices Investigation staff-population ratio of 1:89,076. Finally, Taiwan’s
Bureau (CPIB) is ranked second, with a per Ministry of Justice Investigation Bureau (MJIB)
capita expenditure of US$2.32 and fourth with a ranks seventh with a per capita expenditure of
staff–population ratio of 1:56,163. US$0.18, but it has the second most favorable
On the other hand, the other seven anti-corrup- staff–population ratio of 1:27,262.
tion agencies are poorly funded and staffed, with The comparative analysis in Table 3.8 shows
Indonesia’s Komisi Pemberantasaan Korupsi that the political leaders in South Korea,
(KPK) having the highest staff–population ratio Mongolia, Thailand, the Philippines, Taiwan,
of 1:433,888 and the second lowest per capita Indonesia, and India must demonstrate their
expenditure of US$0.14. The Central Bureau of political will in curbing corruption by increasing
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 33
substantially the legal powers, personnel, and ernment as trustworthy. Furthermore, Jun and
budgets of their anti-corruption agencies. For Kim distinguish between trust in interpersonal
example, the Korea Independent Commission relations and trust in institutions. Trust in
Against Corruption (KICAC) was not a full-fledged interpersonal relations is assessed “through the
anti-corruption agency when it was established in amount of interpersonal competence that people
January 2002 as it did not perform the major assign others in their current roles” (Jun and Kim
function required of an anti-corruption agency 2002, pp. 3–4).
namely, investigating corruption offences, and its On the other hand, it is difficult to apply trust in
scope was restricted to dealing with public sector interpersonal relations at the institutional level
corruption only (Quah 2010, pp. 37–38). On because “as long as people engage in instrumental
February 29, 2008, the KICAC was merged with interactions involving technical–functional work
the Ombudsman and the Administrative Appeals relationships and rational exchanges to gain orga-
Commission to form the ACRC. However, like nizational and personal interest, trust will be
the KICAC, the ACRC does not have the power difficult to develop.” It is difficult to build and sus-
to investigate corruption cases. The South Korean tain trust in the structural relationships in institu-
political leaders must remove these two serious tions because of the role ambiguity of the actors
obstacles to the ACRC’s effective performance if and institutions involved and the nature of their
they are committed to curbing corruption in their interactions “which tend to be political, instru-
country. mental-rational, and restricted exchange, if not
Similarly, instead of strengthening the KPK, superficial, in many situations.” A third difficulty
Indonesian President Susilo Bambang Yudhoyono is that there are many factors influencing the level
had unwittingly undermined its effectiveness in of trust and solidarity at the institutional level
May 2005 when he formed an anti-corruption including the individuals’ “sense of organizational
taskforce of prosecutors, police, and auditors to obligation and loyalty, commitment, shared inter-
compete with the KPK (Quah 2006, pp. 178–179). est, pride, roles, and the necessity for survival,
The conflict and competition between the KPK growth, or change” (Jun and Kim 2002, p. 4–5).
and the police and the Attorney-General’s Office Fourth, it is also difficult to sustain the expecta-
(AGO) erupted recently in the arrest of two senior tions of organizational members for a long time.
KPK officials by the police allegedly for bribery. Finally, it is implausible to expect citizens to
The arrest of these officials in the wake of the trust government institutions because they are
arrest of the KPK Chairman for murder is widely “highly unlikely to know the many people work-
viewed as “an apparent high-level conspiracy” by ing in those institutions.” Indeed, trust in institu-
the police and AGO to weaken the KPK (Osman tions depends on whether civil servants perform
2009, p. A9). their roles responsibly and on behalf of the pub-
lic. However, few citizens are aware of the com-
plex structures and functions of government to
3.5 Public Trust and Distrust assess the performance of civil servants (Jun and
of Politicians Kim 2002, p. 5). Accordingly, citizens evaluate
institutions on the basis of their past role perfor-
In their analysis of distrust in South Korea, Jun mance and the trustworthiness of their staff.
and Kim (2002, p. 2) define trust in terms of a Consequently, their level of trust in civil servants
person’s reliance on another person, namely “a and government is enhanced if they perform
person is considered reliable when the truster is effectively as expected. On the other hand, the
completely assured that the trustee will not fail to level of distrust by citizens in their government
meet the expectation of the truster in need.” If and civil servants increases if they fail to meet
trust is defined as “an attitude of optimism about their expectations. Opposition political leaders
the goodwill and confidence of another person,” can feed the citizens’ distrust of the incumbent
citizens are likely to trust civil servants who per- government by reminding them of “past broken
form their duties effectively and to judge the gov- promises” (Levi 1998, p. 86).
34 J.S.T. Quah
According to Margaret Levi (1998, pp. 85–86), Table 3.9 Government effectiveness of 26 Asian
the state creates interpersonal trust among citi- Countries, 1996–2009
zens by having the “capacity to monitor laws, 1996 2009 Change in
bring sanctions against lawbreakers, and provide Percentile Percentile percentile
Country rank rank rank
information and guarantees about those seeking
Singapore 96.6 100.0 +3.4
to be trusted.” However, if they are doubtful about
Hong Kong 85.0 95.7 +10.7
“the state’s commitment to enforce the laws and SAR
if its information and guarantees are not credible, Japan 85.4 86.7 +1.3
then the state’s capacity to generate interpersonal Macao SAR 65.5 (1998) 86.2 +20.7
trust will diminish.” Government institutions can South Korea 77.7 83.3 +5.6
build trust by creating “bureaucratic arrange- Taiwan 86.9 81.4 −5.5
ments that reward competence and relative hon- Malaysia 78.6 79.5 +0.9
esty by bureaucratic agents” because: Brunei 83.5 75.2 −8.3
Bhutan 72.8 (1998) 64.8 −8.0
A competent and relatively honest bureaucracy not
only reduces the incentives for corruption and Thailand 68.9 59.5 −9.4
inefficient rent-seeking but also increases the prob- China 57.3 58.1 +0.8
ability of cooperation and compliance … and of India 51.9 54.3 +2.4
economic growth. … To the extent that citizens Philippines 56.3 50.0 −6.3
and groups recognize that bureaucrats gain reputa- Sri Lanka 35.0 49.0 +14.0
tional benefits from competence and honesty, those
Indonesia 61.2 46.7 −14.5
regulated will expect bureaucrats to be trustworthy
and will act accordingly (Levi 1998, p. 87). Vietnam 48.5 46.2 −2.3
Cambodia 7.3 25.7 +18.4
Mongolia. 45.6 22.9 −22.7
The trust of the state influences the “level of Pakistan 31.1 19.0 −12.1
citizens’ tolerance of the regime and their degree Nepal 33.0 (1998) 18.1 −14.9
of compliance with governmental demands and Bangladesh 26.2 16.7 −9.5
regulations.” Thus, citizens distrust their govern- Laos 24.8 (1998) 14.8 −10.0
ment if it breaks its promises, is incompetent, and Timor-Leste 24.8 (2002) 11.0 −13.8
antagonistic toward them. On the other hand, Afghanistan 0.0 (1998) 3.3 +3.3
they will trust government if they believe that “it Myanmar 8.7 1.0 −7.7
will act in their interests, that its procedures are North Korea 19.4 0.5 −18.9
fair, and that their trust of the state and of others Source: Compiled from http://info.worldbank.org/gover-
is reciprocated” (Levi 1998, pp. 87–88). In short, nance/wgi/mc_chart.asp
a government is considered to be trustworthy if it
has procedures for policy formulation and imple-
mentation that are fair and if it makes credible with Mongolia showing the highest decrease of
commitments. In other words, the citizens in a 22.7 percentile rank, followed by North Korea
country will trust their government if it is effec- (18.9 percentile rank), Nepal (14.9 percentile
tive and delivers the goods. Conversely, they will rank), Indonesia (14.5 percentile rank), and
distrust an ineffective government that fails to Timor-Leste (13.8 percentile rank). Among the
deliver the goods. 11 countries which have increased their govern-
ment effectiveness, the top five countries are
Macao SAR, Cambodia, Sri Lanka, Hong Kong
3.6 Government Effectiveness SAR, and South Korea. However, in 2009, there
in Asian Countries are only eight countries with government effec-
tiveness exceeding the 70 percentile rank,
Table 3.9 shows that of the 26 Asian countries, namely, Singapore, Hong Kong SAR, Japan,
15 countries had registered a decline in govern- Macao SAR, South Korea, Taiwan, Malaysia,
ment effectiveness between 1996 and 2009, and Brunei.
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 35
A second indicator of government effectiveness Table 3.11 Ranking of the 14 Asian countries, 1999 to
is provided by the Global Competitiveness 2002–2003 by their average scores of the competence of
public officials
Reports’ data on the competence of public
officials from 1999 to 2002–2003. Tables 3.10 Average
Country Total score score Ranking
and 3.11 show that the public officials in
Singapore 18.72 4.68 1
Singapore are the most competent, followed by
Japan 15.00 3.75 2
those in Japan, Hong Kong SAR, China, Vietnam,
Hong Kong 14.49 3.62 3
Sri Lanka, Taiwan, India, South Korea, Thailand, SAR
Malaysia, Indonesia, Bangladesh, and the China 14.39 3.59 4
Philippines. Vietnam 14.39 3.59 4
Thirdly, a 2009 survey of 12 Asian countries Sri Lanka 6.80 3.40 6
conducted by the Hong Kong-based Political Taiwan 13.28 3.32 7
Economic Risk Consultancy (PERC) found that India 11.67 2.92 8
the bureaucracy in Singapore was the most effec- South Korea 11.64 2.91 9
tive, followed by the bureaucracy in Hong Kong Thailand 10.45 2.61 10
SAR. At the other extreme, the least effective Malaysia 9.94 2.48 11
bureaucracies were those in the Philippines, Indonesia 9.46 2.36 12
Indonesia, and India in descending order (see Bangladesh 4.40 2.20 13
Philippines 8.55 2.13 14
Table 3.12). Thus, it is not surprising that the lev-
els of government effectiveness in Singapore and Source: Compiled from Table 3.10
Hong Kong are higher than those of India,
Indonesia, and Philippines because their civil ser- Competitiveness Report, and PERC confirm that
vices are more effective than their Indian, Singapore and Hong Kong have the most effective
Indonesian, and Filipino counterparts. governments and civil services. As such, it is not
In sum, the three indicators of government surprising that the citizens in both countries
effectiveness by the World Bank, the Global have demonstrated a higher level of trust in their
36 J.S.T. Quah
governments than their counterparts in other Asian education, low level of corruption, and high
countries, as shown in Tables 3.3, 3.4, 3.5, and 3.6. degree of political stability. Their favorable pol-
icy contexts have enabled the governments and
their civil services to implement various public
3.7 Learning from Singapore’s and policies effectively. Thus, compared to other
Hong Kong’s Experiences larger Asian countries with bigger populations
and rural hinterlands, the “absence of a rural hin-
What can the other Asian countries learn from terland” in Hong Kong and Singapore has con-
the experiences of Singapore and Hong Kong tributed to their rapid growth which has not been
SAR in curbing corruption and enhancing the hindered by their insignificant agricultural sec-
citizens’ trust in their governments? As the major tors (Streeten 1993, p. 199).
factor responsible for the high level of public
trust of politicians in Singapore and Hong Kong
is the effectiveness of their governments, it is 3.7.2 Importance of Meritocracy
necessary to identify the reasons for their effec-
tiveness. In other words, the government must be The second reason for the high level of govern-
effective in order for it to gain the public’s trust. ment effectiveness in Singapore and Hong Kong
How did Singapore and Hong Kong ensure the is the high quality of their civil services as
effectiveness of their governments? reflected in their superior ranking on the World
Bank’s governance indicator on government
effectiveness, the Global Competitiveness
3.7.1 Favorable Policy Context Reports’ indicator on competence of public
officials, and PERC’s evaluation of Asian bureau-
The first reason for the high level of government cracies. As former British colonies, both
effectiveness in Singapore and Hong Kong is Singapore and Hong Kong have continued the
their favorable policy contexts. Table 3.13 shows tradition of meritocracy introduced by the British
that both countries are city-states with small by retaining and relying on the Public Service
populations, high GDP per capita, no housing Commission (PSC) to ensure that recruitment
shortage, high government expenditure on and promotion to their civil services are based on
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 37
Table 3.13 Favorable policy contexts of Singapore and Hong Kong in 2009
Indicator Singapore Hong Kong
Land area 710.3 sq km 1,104.38 sq km
Population 4,987,600 7,003,700
GDP per capita US$35,924 US$30,072
Population in public housing 82% 48%
Government expenditure on education S$8,698.885 million (US$5,980.67 HK$58,766 million (US$7,576.84
million) million)
2010 CPI Rank and Score 1st (9.3) 13th (8.4)
Political Status PAP government has been in power Special Administrative Region of
since June 1959 China since July 1997
Sources: Department of Statistics (2010, p. 2, 9, 13, 264); Information Services Department (2010, p. 1, 207, 449, 475);
and http://www.transparency.org/policy_research/surveys_indices/cpi/2010/results
merit and not patronage. According to A.P. Sinker for the civil service since 1972” (Karim 2007,
(1953, p. 211), a PSC has two functions: “to p. 43).
eliminate patronage in all its forms” and “to find The importance of meritocracy in ensuring the
the best men available and put them in.” The PSC effectiveness of a civil service is clearly illus-
was established in Hong Kong in 1950 to advise trated in Indonesia, where there is no tradition of
the Governor and the Chief Executive after July meritocracy because it was colonized by the
1997 on civil service appointments, promotion, Dutch from 1602 to 1942. Unlike the British, the
and discipline “to ensure that selection processes Dutch did not rely on merit to recruit the local
are ‘fair, meticulous, and thorough’” (Burns civil servants, who were appointed by hereditary
2004, p. 85). Similarly, the PSC was created in succession. The lack of meritocracy was further
Singapore in January 1951 to keep politics out of reinforced during the Japanese Occupation as
the Singapore Civil Service (SCS) and to acceler- “many of the new heads of the bureaucracies had
ate its pace of localization (Quah 1982, p. 50). achieved their high position in the colonial days
Unlike Singapore and Hong Kong, the tradi- because they were loyal to the colonial govern-
tion of meritocracy has not been maintained by ment” (Hadisumarto 1974, p. 161). After inde-
other former British colonies. For example, the pendence, the appointment of senior civil servants
PSC in Bangladesh has abandoned meritocracy was not based on merit but on their personal
because it is “riddled with massive corruption.” background, especially whether they had partici-
Former PSC members in Bangladesh revealed pated in the 1945 revolution against the Dutch
that “bribes worth Tk 50 lakhs change hands (Hadisumarto 1974, p. 164).
daily at the commission, to determine recruit- During Sukarno’s regime, “the principles of
ment, promotions, and other decisions. merit system in hiring, promoting, and firing of
Question papers for the civil service examina- personnel were completely disregarded, while
tions are sold to candidates for Tk 5 lakhs. political and ascriptive considerations became
Promotions are sold for Tk 5–10 lakhs, and criteria for appointment to key positions in the
corruption cases against civil servants, which bureaucracy” (Siagian 1970, p. 100). Similarly,
are vetted by the PSC, are dropped for sums of President Suharto by-passed the established
Tk 2 crore during the 5 years (Shahan 2007 , mechanisms for evaluating senior military officers
p. 27). Instead of maintaining meritocracy, the and promoted those politically ambitious officers
PSC in Bangladesh has been “considerably who had built a good relationship with him and
used as a body for the partisan appointment of his family. Indeed, the selection process was
Chairman and Members, and for [the] recruitment designed to produce officers who were loyal to
[of] pro-ruling party activists and supporters President Suharto (Kristiadi 2001, p. 102).
38 J.S.T. Quah
In short, the lack of a meritocratic tradition in In Singapore, the expatriate civil servants also
Indonesia’s civil service is reflected in the impor- received much higher salaries and more allow-
tance of patronage on the one hand, and the ances than their local counterparts. This discrimi-
neglect of merit on the other hand in the recruit- nation against local civil servants in the British
ment and promotion of its civil servants. More colonies was justified by the Public Services
importantly, the absence or lack of importance Salaries Commission of 1919 (Seah 1971, p. 15).
attached to meritocracy in the Indonesian civil When the People’s Action Party (PAP) govern-
service has not only undermined its effectiveness ment assumed office in June 1959 after winning
but also increased its vulnerability to corruption. the May 30, 1959 general election, it “found the
national coffers seriously depleted” (Bogaars
1973, p. 80). Accordingly, a Cabinet Budget
3.7.3 Attracting and Retaining the Committee on Expenditure was formed and it
“Best and Brightest” recommended the abolition of the 35% of the
variable allowance (VA) for Division I officers, a
To attract and retain the “best and brightest” citi- 10% reduction of the VA for Division II officers,
zens into their civil services, the governments in and a 5% cut in the VA for Division III officers.
Singapore and Hong Kong have relied on com- The government implemented this recommenda-
petitive salaries to minimize the brain drain of tal- tion which resulted in saving S$10 million. The
ented civil servants to the private sector. The high VAs of the senior civil servants were restored by
salaries of Hong Kong’s civil servants is a legacy the government in 1961 when the budgetary situ-
of its 156 years of British colonial rule which pro- ation improved. In 1968, a report on public sector
vided “generous perks and benefits” for the top salaries recommended pay rises of more than
civil servants but not the legislators to attract 25% for most civil servants. However, the gov-
expatriate officers to work in Hong Kong. Their ernment did not accept this recommendation
generous pay package includes “housing, chauf- because it could not afford to so (Quah 2003b,
feur-driven limousines for personal use, passages, pp. 147–148). Former Prime Minister Lee Kuan
local and overseas education allowances.” The Yew (2000, pp. 194–195) wrote in his memoirs
high salaries that were institutionalized during that after independence, he “had frozen ministe-
colonial rule were continued after Hong Kong rial salaries and kept public wage increases at a
became a Special Administrative Region of China low level to be sure that we would cope with the
on July 1, 1997. An Independent Commission on expected unemployment and slowdown in the
Remuneration for Members of the Executive economy and to set an example of restraint.”
Council and the Legislature of the HKSAR was Singapore’s rapid economic growth during the
established to review and give advice on the pay 1970s resulted in higher salaries in the private sec-
of civil servants and legislative councilors. The tor. To curb the brain drain from the SCS to the
official guiding principle for civil service pay is private sector, the National Wages Council recom-
that it is “set at a level which is sufficient to attract, mended the payment of an Annual Wage
retain, and motivate staff of a suitable calibre to Supplement (AWS) or the “13th month pay” in
provide the public with an effective and efficient March 1972 to reduce the wage gap in the public
service, and such remuneration should be regarded and private sectors. Public sector salaries were fur-
as fair by both civil servants and the public which ther increased in 1973 and in 1979. In 1981, the
they serve.” As Hong Kong’s per capita GDP Research and Statistics Unit of the Inland Revenue
increased by more than two times during 1980 Department conducted a survey on the employ-
and 2000, the adoption of “the market principle of ment and earnings of 30,197 graduates, or 81.5%
broad comparability with the private sector” of the working graduate population enumerated in
resulted in a tenfold increase in the pay of Hong the 1980 population census (Quah 1984, p. 296).
Kong’s top political executive from 1976 to 2001 The survey found that graduates in the private sec-
(Lee 2003, pp. 130, 138, 141). tor earned, on the average, 42% more than those in
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 39
the public sector (Sunday Times 1982a, p. 1). The International’s 2010 CPI and the World Bank’s
PSC revealed that from 1978 to 1981, eight super- 2009 Control of Corruption governance indicator.
scale and 67 timescale administrative officers had How did Singapore and Hong Kong succeed in
resigned from the SCS for more lucrative jobs in curbing corruption effectively?
the private sector (Sunday Times 1982b, p. 1). To
deal with these problems of wide disparity in pay 3.7.4.1 Creation of an Independent
between graduates in the public and private sec- Anti-Corruption Agency
tors, and the serious brain drain of talented senior The British colonial government enacted the
civil servants from the SCS to the private sector, Prevention of Corruption Ordinance (POCO) in
the government further revised the salaries of the Singapore in December 1937 and created the
administrative officers in April 1982 (Quah 1984, Anti-Corruption Branch (ACB) within the Criminal
p. 297). Investigation Department (CID) of the Singapore
In March 1989, the Minister for Trade and Police Force (SPF) to curb corruption (Quah
Industry, Lee Hsien Loong, recommended a hefty 2007a, p. 14). This decision to make the ACB
salary increase for the SCS because the compara- responsible for corruption control is difficult to
tively low salaries and slow advancement in the understand especially when the existence of ram-
Administrative Service had contributed to its low pant police corruption in Singapore was docu-
recruitment and high resignation rates (Quah mented by the 1879 and 1886 Commissions of
2003b, p. 150). Similarly, in December 1993, he Inquiry (Quah 1979, pp. 24–27). Not surpris-
announced that the salaries of ministers and ingly, the ACB was ineffective in curbing corrup-
senior civil servants would be increased from tion for three reasons. First, the ACB was
January 1994 to keep pace with the private sector under-staffed as it had only 17 personnel to per-
and to compensate for the reduction in their med- form 16 duties including corruption control.
ical benefits (Straits Times 1993, p. 1). In October Second, it had to compete with other branches of
1994, a White Paper on Competitive Salaries for the CID for limited manpower and resources as
Competent and Honest Government was pre- corruption control was accorded lower priority
sented to Parliament to justify the pegging of the than the investigation of serious crimes like mur-
salaries of ministers and senior civil servants to der and kidnapping. The third and most impor-
the average salaries of the top four earners in six tant reason for the ACB’s ineffectiveness was the
private sector professions: accounting, banking, prevalence of police corruption which made it
engineering, law, local manufacturing compa- difficult for the ACB staff to enforce the POCO
nies, and multinational corporations. The White impartially toward their colleagues (Quah 2007a,
Paper recommended the introduction of formal pp. 14–15).
salary benchmarks for ministers and senior civil The folly of the British colonial government’s
servants, additional salary grades for political decision to make the ACB responsible for corruption
appointments, and annual salary reviews for the control was revealed when three police detectives
SCS. The adoption of the long-term formula sug- were implicated in the robbery of 1,800 pounds of
gested in the White Paper removed the need to opium worth about S$400,000 (US$133,330). The
justify the salaries of ministers and senior civil involvement of these detectives and some senior
servants “from scratch with each salary revision” police officers in the Opium Hijacking Scandal in
(Republic of Singapore 1994, pp. 12–13, 18). October 1951 made the British colonial government
realize the importance of setting up an anti-
corruption agency that is outside the SPF’s jurisdic-
3.7.4 Effective Control of Corruption tion (Tan 1999, p. 59). Consequently, the Corrupt
Practices Investigation Bureau (CPIB) was formed
Tables 3.1 and 3.2 show that Singapore and a year later in October 1952.
Hong Kong are perceived to be the least cor- Similarly, in Hong Kong, the ACB of the CID
rupt Asian countries according to Transparency of the Royal Hong Kong Police Force (RHKPF)
40 J.S.T. Quah
was also responsible for combating corruption powers of the anti-corruption agency responsible
from 1948 until 1971, when the ACB was for its implementation.
upgraded to the Anti-Corruption Office (ACO), The Misdemeanours Punishment Ordinance
which was also ineffective in curbing the ram- (MPO) was the first local law enacted against
pant police corruption. The escape of a corrup- corruption in Hong Kong in 1898. The MPO
tion suspect, Chief Superintendent Peter F. increased the maximum penalty for corruption to
Godber, on June 8, 1973, to the United Kingdom 2 years’ imprisonment and/or a fine not exceed-
angered the public and undermined the ACO’s ing HK$500. The Prevention of Corruption
credibility. Consequently, the Governor, Sir Ordinance (POCO), which was enacted in 1948,
Murray MacLehose, was compelled by public provided a more comprehensive definition of cor-
criticism to accept the Commission of Inquiry’s ruption, and increased the maximum penalty for
recommendation to establish an independent corruption to 5 years imprisonment and a fine of
agency, separate from the RHKPF, to fight HK$10,000. The inadequate powers conferred by
corruption. Accordingly, the Independent the POCO and its other limitations led to its
Commission Against Corruption (ICAC) was review in 1968 and its replacement by the
formed on February 15, 1974 (Quah 2003a, Prevention of Bribery Ordinance (POBO), which
pp. 137–139). was enacted on May 15, 1971 (Kuan 1981, pp.
Thus, Singapore’s and Hong Kong’s success 16–18, 23, 29).
in minimizing corruption can be attributed to The POBO had three significant features. First,
their rejection of the British colonial method of it enabled the government to prosecute a civil ser-
relying on the police to curb corruption and vant for corruption if he could not provide a sat-
their reliance instead on independent anti-cor- isfactory explanation for maintaining a standard
ruption agencies like the CPIB and ICAC. of living or controlling excessive pecuniary
It should be noted that Singapore has taken 15 resources that were not commensurate with his
years (1937–1952) and Hong Kong has taken present or past official salaries (Kuan 1981, p.
26 years (1948–1974) to learn this important 32). Second, the POBO provided extensive pow-
lesson (Quah 2004, pp. 1–2). However, India ers of investigation as the Attorney-General could
still relies on the Central Bureau of Investigation authorize the inspection of bank accounts, safe-
(CBI) to curb corruption even though there is deposit boxes, books, documents, or articles. He
extensive police corruption and the CBI is part could also require the suspect or any other per-
of the police (Quah 2008, p. 253). sons to submit information, and authorize the
A regional survey of anti-corruption agencies entry into and search of any premises. Third, the
in Asian countries shows that those countries POBO introduced severe maximum penalties:
which have adopted a single anti-corruption the general maximum penalty was a fine of
agency are more effective than their counterparts HK$50,000 and 3 years’ imprisonment, or on
which have relied on multiple anti-corruption indictment, a fine of HK$100,000 and 7 years’
agencies if their governments are committed to imprisonment. The duration of imprisonment
combating corruption (Quah 2007b, pp. 4–6). was increased to 10 years for offences involving
Table 3.8 shows that Hong Kong’s ICAC and contracts and tenders. The immediate conse-
Singapore’s CPIB were among the best funded quence of Peter Godber’s escape in June 1973 to
and staffed anti-corruption agencies. Britain was the amendment of the POBO to
remove the safeguards in the interests of the sus-
3.7.4.2 Comprehensive Anti-corruption pect, and to require a suspect to surrender all his
Legislation travel documents (Kuan 1981, pp. 38–39).
A second prerequisite of an effective anti-corruption The ICAC was established on February 15,
strategy is comprehensive anti-corruption legis- 1974 with the enactment of the ICAC Ordinance,
lation, which defines explicitly the meaning and which entrusted it with the tasks of rooting out
forms of corruption, and specifies clearly the corruption and restoring public confidence in the
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 41
government. Apart from specifying the Comm- and his senior officers to investigate “any bank
issioner’s duties in section 12, the ICAC account, share account, or purchase account” of
Ordinance also indicates the ICAC’s powers. For any person suspected of having committed an
example, the ICAC Ordinance empowers the offence against the POCA. Section 18 enabled
Director of the Operations Department to autho- the CPIB officers to inspect a civil servant’s
rize his officers to restrict the movement of a sus- banker’s book and those of his wife, child, or
pect, to examine bank accounts and safe-deposit agent, if necessary (Quah 1995a, p. 395).
boxes, to restrict disposal of a suspect’s property, No matter how comprehensive the anti-corr-
and to require a suspect to provide full details of uption legislation in a country is, it must be
his financial situation. These officers can also reviewed periodically to remove loopholes or
arrest without warrant for the offences indicated deal with unanticipated problems by introducing
in ICAC Ordinance and the POBO, and they can amendments or, if necessary, new legislation
search premises and seize and detain any evi- (Quah 2004, p. 2). For example, in 1966, the
dence for such offences (Kuan 1981, p. 40). POCA was amended to ensure that Singaporeans
In Singapore, corruption was made illegal in working for their government in embassies and
1871 with the enactment of the Penal Code of the other government agencies abroad would be
Straits Settlements. As indicated earlier, the POCO prosecuted for corrupt offences committed out-
was enacted in December 1937 as Singapore’s side Singapore and would be dealt with as if such
first anti-corruption law. However, the ACB’s inef- offences had occurred in Singapore (section 35)
fectiveness and the involvement of police officers (Quah 1978, p. 13). In March 1989, the Corruption
in the Opium Hijacking Scandal of October 1951 (Confiscation of Benefits) Act was enacted after
led to the formation of the CPIB in October 1952. the Teh Cheang Wan corruption scandal of
The PAP government assumed office in June 1959 December 1986 to provide for the confiscation of
and demonstrated its commitment to curbing cor- benefits from the estate of a defendant if he or she
ruption by enacting the Prevention of Corruption is deceased (Quah 1995a, p. 396).
Act (POCA) on June 17, 1960. The POCA had
five important features which removed the POCO’s 3.7.4.3 Reduction of Red Tape
weaknesses and gave the CPIB additional powers As unnecessary regulations provide opportuni-
for performing its duties. First, the POCA’s scope ties for corruption, the PAP government has ini-
was broader, as it had 32 sections in contrast to the tiated various measures to reduce these
12 sections of the POCO. Second, corruption was opportunities in Singapore by cutting red tape.
explicitly defined in terms of the various forms of The Service Improvement Unit (SIU) was
“gratification” in section 2, which also identified formed in April 1991 to improve the quality of
for the first time, the CPIB and its Director. Third, service in the SCS and statutory boards by
to increase the deterrent effect of the POCA, the obtaining public feedback on the removal of
penalty for corruption was raised to imprisonment unnecessary regulations. From April 1991 to
for 5 years and/or a fine of S$10,000 (section 5). March 1992, the review of over 200 rules by the
Fourth, a person found guilty of accepting an ille- SCS and statutory boards resulted in the
gal gratification had to pay the amount he had modification or abolition of 96 rules (Quah
taken as a bribe in addition to any other pun- 1995b, pp. 339–340). In May 1995, Public
ishment imposed by a court (section 3) (Quah Service for the twenty-first Century (PS21) was
1995a, p. 395). introduced to improve the quality of service and
The fifth and most important feature of the prepare the SCS to welcome and accept change.
POCA was that it gave the CPIB more powers As part of PS21, the Cut Waste Panel was formed
and a new lease of life. For example, section 15 in September 2003 “to receive suggestions from
gave CPIB officers powers of arrest and search of the public on where the government can cut
arrested persons. Section 17 empowered the waste, remove frills, and make savings in the
Public Prosecutor to authorize the CPIB Director delivery of public services” (Quah 2007c, p. 178).
42 J.S.T. Quah
The PAP government also relies on e-Government the Government Chief Information Officer in
to enhance transparency and reduce opportuni- July 2004 (Lam 2006).
ties for corruption by simplifying the procedures Singapore’s and Hong Kong’s efforts to reduce
for obtaining business licences. In 2004, the red tape through the introduction of e-Government
On-Line Applications System for Integrated have reaped dividends as both countries have
Services (OASIS) was launched to enable the been ranked among the top five economies by the
public to “apply, renew, or terminate 85 differ- World Bank for the ease of doing business from
ent types of licences” online. Similarly, to 2007 to 2011. Table 3.14 shows that Singapore is
reduce the opportunities for corruption and consistently ranked first and Hong Kong SAR is
improve efficiency and transparency in procure- ranked between second and fifth positions among
ment, the online procurement portal known as the 175–183 economies and the 23 Asian econo-
GeBiz was introduced to enable government mies included in the World Bank’s Doing
procurement to be done through the internet Business Surveys from 2007 to 2011. The ease of
(Soh 2008, p. 7). doing business in Singapore and Hong Kong
In Hong Kong, Lam Bing Chuen (2004: 135) SAR is a reflection of the effectiveness of their
found that the Housing Authority’s project orga- governments, the absence of red tape, and their
nization had more red tape than private project lower levels of perceived corruption.
organizations because of its emphasis on the con-
trol and operating systems. In 1999, the Enhanced 3.7.4.4 Punishing the Corrupt Offenders
Productivity Programme (EPP) was introduced As discussed earlier, corruption is rampant in
to improve productivity through savings in such those Asian countries where those committing
baseline expenditure as personal emoluments and corrupt acts are unlikely to be detected or pun-
departmental expenses (Scott 2005, pp. 95–96). ished. Consequently, the most effective way to
In January 2003, Christopher Cheng, the curb corruption is to punish those found guilty of
Chairman of the Hong Kong General Chamber of corrupt offences. The experiences of Singapore
Commerce, called for the civil service to change and Hong Kong demonstrate the importance of
by adopting practices from the private sector, punishing corrupt offenders, regardless of their
including the review of all government services status or position, in order to deter others from
to eliminate those regulations that hindered busi- being involved in corruption.
ness (Cheng 2003). The EPP’s first phase was In Singapore, the prosecution rate for corruption
completed in 2003 and resulted in savings of cases has increased from 47% in 2000 to 60% in
HK$5.4 billion or 5.2% of baseline expenditure 2002. Similarly, the conviction rate for corruption
(Scott 2005, p. 96). cases also rose from 9 to 99% from 2000 to 2002.
In 1998, the Chief Executive launched the Furthermore, during the same period, 680 persons
“Digital 21 IT Strategy” to enhance Hong Kong’s were charged and 293 public officers were disci-
information infrastructure and services. In May plined for corrupt offences (CPIB 2003, p. 3.25). In
2001, the “2001 Digital 21 Strategy” was intro- Hong Kong, the ICAC’s Operations Department
duced to further strengthen Hong Kong’s position completed 3,364 investigations, and 357 persons
as a leader in the digitally connected world. The were prosecuted and 54 persons formally cautioned
e-Government Programme promoted the adop- in 2008. In 2007, the Operations Department
tion of e-Commerce in the private sector by pro- arrested 781 persons, of whom 23 were civil ser-
viding e-options for more services, including vants. The number of persons arrested for corrup-
e-procurement and outsourcing (Yong and Leong tion and related offences increased to 936 persons,
2003, pp. 101–103). To reduce red tape, the gov- including 27 public officials (ICAC 2009, p. 39).
ernment streamlined its own information tech- Thus, to minimize corruption and to deter
nology operations by establishing the Office of those who are not involved in corrupt practices
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 43
the past 13 years. For example, contrary to the learn from the latter? For example, is it possible
fears of some observers, the ICAC’s effective- for China, which is a Communist state, to learn
ness has not been adversely affected after July from Hong Kong’s and Singapore’s experiences
1997. In 2001, 4 years after the handover, the in curbing corruption? In his answer to this ques-
ICAC Commissioner, Alan N. Lai (2001, p. tion, Anthony Cheung (2007, p. 66) suggests that
51), declared that Hong Kong’s “credentials as “China may not follow exactly the path of Hong
a champion in fighting graft have remained as Kong and Singapore, in terms of shifting towards
strong as ever.” a single-ACA [Anti-Corruption Agency]
As the policy contexts in the other Asian coun- approach” because “its anti-corruption drive will
tries differ from the favorable policy contexts in remain shaped by political factors and institu-
Singapore and Hong Kong, what can the former tional constraints.”
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Cybercrime in Asia: Trends
and Challenges 4
Roderic Broadhurst and Lennon Y.C. Chang
Table 4.1 Number of Internet users in the Asia Pacific region 2011
Rank Country Number of Internet users 2011 % Population 2011 % Population 2002a
1 China 485,000,000 36.3 3.5
2 India 100,000,000 8.4 0.7
3 Japan 99,182,000 78.4 48.0
4 Indonesia 39,600,000 16.1 1.8
5 Korea, South 39,440,000 80.9 52.7
6 Philippines 29,700,000 29.2 2.5
7 Vietnam 29,268,606 32.3 0.5
8 Pakistan 20,431,000 10.9 0.3
9 Thailand 18,310,000 27.4 5.7
10 Australia 17,033,826 78.3 46.0
11 Malaysia 16,902,600 58.8 24.4
12 Taiwan 16,147,000 70.0 49.8
13 Hong Kong 4,878,713 68.5 64.1
14 Singapore 3,658,400 77.2 55.6
15 New Zealand 3,600,000 83.9 N/A
16 Sri Lanka 1,776,900 8.3 0.8
17 Bangladesh 1,735,020 1.1 0.1
18 Nepal 1,072,900 3.7 0.2
19 Laos 527,400 8.1 0.2
20 Mongolia 350,000 11.2 1.6
Source: Internet World Stats, http://www.internetworldstats.com/stats.htm (accessed 6 September 2011)
a
Retrieved from Broadhurst (2006a)
population of Internet “netizens,” this still com- include viruses, trojans, worms1 and botnets2
prises only 31.8% of the total population and (IBM 2009; Trend Micro 2009; Wall 2007).
these are mostly urban users. Such crime-ware can also be purchased on-
Compared with the proportion of Internet line from websites and underground forums or
users in 2002, shown in Table 4.1 there has “dark” networks that include instructions on
been a significant increase in all countries in how to use such software. This enables the
the Asia and Pacific region in the past 10 years. wider use of “attack toolkits” by non-technical
For example, only 3.5% of the Chinese popula- actors, including criminal groups and may
tion were Internet users in 2002, but this account for the increased prevalence of cyber-
increased to 36.3% by 2011. There was also a crime. Along with this growth, the malware
significant increase in other developing coun- itself has evolved to adapt to countermeasures
tries like Vietnam, the Philippines, Pakistan such as software programs designed to prevent
and India. and detect intrusions. Malware has also been
Along with the rapid rise of Internet use, developed to attack new devices such as smart
cybercrime has also become prevalent in this phones and other digital devices (Symantec
region. However, of all the countries in the 2011).
Asia and Pacific region only Japan has signed Symantec also provides general Asian-
and ratified the Council of Europe Convention Pacific-Japan region (APJ) Internet security
on Cybercrime. The Convention is the only reports that have ranked the impact on APJ coun-
multi-lateral instrument for the control of tries from all kinds of malicious activities,
cybercrime and we discuss it further below. including denial of service attacks (DDoS),
First we begin with a short introduction to the botnet infections, phishing, spam and viruses.
problem of cybercrime in Asia and compare Their reports also indicate the origin of the
the laws and regulations in Asian states with attacks, such as the source of spam and the top
the provisions of the Convention. We also con- countries hosting phishing sites.3 According to
sider the challenges faced in developing effec- their 2010 APJ report, Symantec found that
tive cross-national policing of cybercrime
in Asia.
1
A worm is a sub-class of a virus. Worms spread from
4.2 Cybercrime and Its Impact computer to computer, but unlike a virus, can travel with-
in Asia out any help from a person. The danger with a worm is its
ability to replicate itself.
2
A botnet is a network of individual computers infected
Given the expansion in Internet participation a with malware. These compromised computers are also
drastic rise in cybercrime and information known as zombie computers. The zombies, part of a bot-
security problems has occurred in Japan, South net under the control of the botnet controller, can then be
used as remote attack tools to facilitate the sending of
Korea and greater China since 2005, accord-
spam, hosting of phishing websites, distribution of mal-
ing to private information security companies. ware and mounting denial of service attacks. The most
For example, Symantec, a provider of com- commonly used are centralised and P2P modes—hence
puter security software, such as anti-virus the focus on command and control servers for a botnet
that may comprise of thousands of zombies.
tools, monitors and quantifies malicious com- 3
The Symantec “APJ Internet Security Threat Report”
puter activity that occurs on about 133 million
measured malicious activity that mainly involved botnet-
computers that use their services (Symantec infected computers, bot command-and-control servers,
2011). This describes malicious computer phishing Web sites hosts, malicious code reports, spam
activities such as programs that are used to zombies and Internet attack origins that took place or
originated in each country. Rankings were based on a cal-
disrupt, damage or steal information from
culation of the mean average of the proportion of these
computer systems. These so-called “malware” malicious activities originating in each country (Symantec
or “crime-ware” computer codes usually 2007a, b, 2008, 2009, 2011).
52 R. Broadhurst and L.Y.C. Chang
China ranked top in terms of malicious activi- computers. The kinds of activities vary but
ties in the region, followed by the South Korea, encompass online scams and malware such as
India, Taiwan and Japan (see also Symantec spyware, phishing, rootkits5 and botnets. Malware
2011). As to the origin of attacks targeting the infiltrates a computer system and may include
APJ region, Symantec detected that most viruses, worms, backdoors, keyloggers and
attacks came from the USA, followed by China, trojans.
South Korea and Japan (Symantec 2009). The In online scams, the internet is used to reach
overall impact of malicious activity placed the potential victims by sending unsolicited mes-
USA first, and China as the next most affected, sages pretending to originate from legitimate
but growing rapidly from 9% of such activity to organisations in order to deceive individuals or
16% in 2010. Countries such as Brazil, India and organisations into disclosing their financial and/
South Korea account each for about 4% of such or personal identity information. Information
activity (Symantec 2011). obtained from “phishing” facilitates crimes such
China also had the most botnet-infected com- as financial fraud and identity theft. For exam-
puters detected in the APJ region for the period ple, a common form of phishing in China are
2006–2010 while Taiwan was ranked second, fol- lottery scams delivered by email or instant mes-
lowed by South Korea and India. Taipei was the senger that links the recipient to a fake website
city with the most botnet-infected computers in (cited in KIC 2011). The spread of malware is
the region (Symantec. 2007a, b, 2008, 2009). A easier when a hacker is attuned to what is hap-
2010 survey4 conducted by Norton, an anti-virus pening in a particular culture, and is aware of
provider, found that 83% of respondents from the current issues that help make the deception
China experienced some form of cybercrime, more effective. For example, some malware has
including a computer virus or some form of been designed to target operating systems or
crime-ware. This was much higher than the global websites using only Chinese language and often
average of 65%. Except for Japan which has a masked with appeals to patriotic sentiments
lower victimisation rate (36%), other countries in (Symantec 2008).
the Asia and Pacific region like Australia (65%), Botnets are now widespread and targeted on
India (75%) and New Zealand (70%) are all financial opportunities. Botnets are the main
higher than the global average (Norton 2010). mechanism for the commercialisation and indus-
Malware like trojans and botnet programs are trialisation of cybercrime. Targets will include all
spread through social engineering techniques kinds of digital devices (i.e. mobile phones, rout-
(Guenther 2001), i.e. methods of deception that ers, switches and backup devices) as well as
create a false sense of trust, to gain “access infor- desk-top computers. The increase connectivity of
mation,” for example a professional looking web- digitized appliances linked to the Internet
site mimicking a brand or service or via spam and (e.g. vending machines, gas pumps, ATM’s) and
phishing emails. Criminal groups are engaged in mobile phones to pay for such products will
computer or network intrusions to obtain sensi- ensure that they are attractive targets. Mobile or
tive information such as identity and password smart phones also tend to be less well protected
information. This in turn can be used to under- against intrusion than other digital devices. Real-
take large-scale financial crime, and social engi- time programs such as Instant Messaging are
neering may be the preferred method of obtaining likely to a major risk as are social network sites
access to such data contained in digital devices/ where it seems many users assume safety and
5
Rootkits are cloaking technologies usually employed by
4
The survey includes the United States, Australia, Brazil, other malware programs to misuse compromised systems
Canada, China, France, German, India, Italy, Japan, New by hiding files, registry keys and other operating system
Zealand, Spain, Sweden and the United Kingdom. objects from diagnostic, antivirus and security programs.
4 Cybercrime in Asia: Trends and Challenges 53
agencies to investigate and prosecute (Brenner international, rather than regional, treaty (Archick
2006). The extent that Asia has been able to 2006; Csonka 2000; Keyser 2003; Weber 2003).
address the need for such cooperation is addressed Resolution 56/121, of the UN General Assembly
by describing the first international instrument noted the work of international and regional
and the role it has played in developing cyber- organisations in combating hi-technology crime,
crime law in Asia. and stressed the importance of the Convention on
The Council of Europe’s (CoE) 2001 Cybercrime. The UN also invited Member States,
Convention on Cybercrime, often referred to as when developing national laws, policy and prac-
the Budapest Convention6 is currently the only tices aimed at combating the criminal misuse of
multi-national agreement that provides for the information technologies, to take into account the
means to prosecute cybercriminals and represents work and “achievements” of other international
an important attempt to regulate cyberspace. In and regional agreements such as the Convention
order to harmonise criminal law and procedures (United Nations 2002).
across the states of Europe for the prosecution of The CoE Convention on Cybercrime (hereaf-
cyber-criminals, the CoE7 drafted a convention ter the Convention) has four parts: Chapter I
on cybercrime. The initiative can be traced back defines the terms used; Chapter II the measures to
to 1989 when the CoE published a set of recom- be taken at the national level, including substan-
mendations on the need for substantive criminal tive criminal law and procedural law; Chapter III
law to criminalise harmful conduct committed establishes the general principles of international
through computer networks. In 1997 the CoE cooperation and mutual assistance and Chapter
formed a Committee of Experts on Crime in IV includes miscellaneous matters such as acces-
Cyberspace to draft a convention to facilitate sion to the Convention.9
States’ cooperation in investigating and prosecut- In terms of substantive laws, the Convention
ing computer crimes and to provide a solution to lists four: (1) offences against the confidentiality,
cybercrime problems through the adoption of an integrity and availability of computer data and
international legal instrument (Council of Europe systems, such as illegal access of a computer sys-
2001a, b; ITU 2009; Keyser 2003; Weber 2003). tem; interception of non-public transmissions of
In November 2001, the Convention on Cybercrime computer data to, from, or within a computer sys-
was opened for signature and it entered into force tem; interference with computer data; interfer-
on July 1, 2004 after ratification by the required ence with computer systems, such as computer
minimum five member countries.8 sabotage and the misuse of computer-related
The Budapest Convention is supported by the devices (e.g. “hacker tools”), (2) computer-
United Nations (UN) and because it also included related offences, including the traditional offences
non-Council states it can be also regarded as an of fraud and forgery when carried out through a
computer system, (3) content-related offences, in
order to control the use of computer systems as
6
Budapest was the city in which the Convention was vehicles for the sexual exploitation of children
opened for signature November 8, 2001. and acts of a racist or xenophobic nature and
7
The Council of Europe (CoE), founded in 1949, com- (4) offences relating to infringement of copyright
prises 45 countries, including the members of the European and related rights.
Union (a separate entity), as well as countries from Central
The procedural part of the Convention aims to
and Eastern Europe. Headquartered in Strasbourg, France,
the CoE was formed as a vehicle for integration in Europe, enable the prosecution of computer crime by
and its aims include agreements and common actions in establishing common procedural rules and adapting
economic, social, cultural, legal and administrative
matters.
8
Only after ratification by five states (including at least
9
three from members of the CoE) will the Convention enter For more detail description and discussion of the
into force. Albania, Croatia, Estonia, Hungry and Lithuania Convention, please see Weber (2003) and Broadhurst
were the first five states to ratify the Convention. (2006b).
4 Cybercrime in Asia: Trends and Challenges 55
traditional crime fighting measures such as search tially associated with these tools by banning their
and seizure, and it also creates new measures, creation and distribution. Use and possession are
such as expedited preservation of data. As data in also criminalised. However, if the purpose of the
cyberspace is dynamic, other evidence collection program was for a legitimate purpose such as
methods relevant to telecommunications (such as “authorised testing or protection of a computer
real-time collection of traffic data and intercep- system” then possession of such “malware” was
tion of content data) have also been adapted to not criminalised [Article 6(2)]. An exemption
permit the collection of electronic data during the similar to the possession of certain pharmaceuti-
process of communication by police or service cals by medical practitioners for “legitimate” use,
providers. The real-time collection of traffic data and exceptions for forensic and preventative use
and interception of content data are the most was also envisaged. So legitimate industry profes-
intrusive powers in the Convention (Csonka sionals are not adversely affected but has proven a
2000). The definition of “computer system” in difficult law to implement, and each jurisdiction
the Convention does not restrict the manner in can determine what sorts of malware might trig-
which the devices or group of devices may be ger unlawful use. Attempts have been made to
interconnected. These interception powers there- control the use of these tools in Germany (German
fore also apply to communications transmitted by Criminal Code Law 202c 2007), the UK, (Section
means of any computer system, which could 37, UK Computer Misuse Act amendment effec-
include transmission of the communication tive 2008), Taiwan (Article 362, Criminal Code)
through telecommunication networks before it is and to some extent in China (Criminal Code 7th
received by another computer system. amendment in 2009—Article 285) and Japan
The Convention also makes it clear that inter- (June 2011 Article 168-2 Japanese Criminal
national cooperation is to be provided among Code). In July 2011 a European Union (EU) min-
contracting states “to the widest extent possible.” isterial meeting proposed to make “hacking tools”
This principle requires them to provide extensive illegal but the definition of a “tool” has been ques-
cooperation and to minimise impediments to the tioned as well as the effectiveness of such a prohi-
rapid flow of information and evidence. The bition. To date, there have been few prosecutions
Convention also creates the legal basis for an in jurisdictions with relevant legislation, and
international computer crime assistance network, crime-ware is still readily available.
i.e. a network of national contact points perma- The continued proliferation of malware arises
nently available (the “24/7 network”). The net- in part because some states continue to be the
work established by the Convention is based on “weakest links” in the supposedly seamless cross-
experience gained from the network created by national security web necessary to prevent cyber-
the G8 and co-ordinated by the US Department crime. Indeed the involvement of the state or at
of Justice. Under the Convention, States are obli- least quasi-state actors in the dissemination and
gated to designate a point of contact available use of crime-ware is a considerable impediment
24 h a day, 7 days a week, in order to ensure to effective law enforcement. In some countries
immediate assistance to investigations within the in Asia, the absence of appropriate laws and/or
scope of the Convention. The establishment of effective law enforcement enables their jurisdic-
this network is one of the most important provi- tion to provide safe havens for cybercriminals.
sions provided by the Convention to ensure that
States can respond effectively to the law enforce-
ment challenges posed by computer crime. 4.4 Application of the Budapest
The Convention [Article 6(1)(a)] also prohibits Convention in Asia
“…the production, sale, procurement for use,
import, distribution” of software programs with As in September 2012, the Convention has
the purpose of committing crime. The intention of received 47 signatories and of those, 37 countries
this provision was to prevent the crimes poten- have ratified it after signing. The rapid ascension
56 R. Broadhurst and L.Y.C. Chang
of the Convention reflects the importance of the from unauthorised access, introduction of viruses,
problem and the recognition that a multi-national damage, disruption and denial of access in sec-
approach will be needed. Most of the signatory tion 43 of the India IT Act 2000, the amendments
countries are Member States of the CoE with only also criminalised offences, such as using com-
four non-member States (Canada, Japan, South puter codes or communication devices to dissem-
Africa and the USA) signing the Convention. The inate false information, dishonestly receiving or
USA was the first non-member State to ratify the retaining any stolen computer resources or com-
Convention, however, the additional protocol to munication devices, fraudulently or dishonestly
the convention which specifically address hate making use of electronic signature, password or
crime was excluded on the constitutional grounds other unique identification features of any other
of the right to free speech. The accession by the person (see amendments to section 66—66A to
USA elevated the status of the Convention to an 66F). Also amendments to section 67, enhanced
international rather than a regional treaty. the punishment for publishing or transmitting
As noted, most countries in Asia are not signa- obscene material in electronic form from 3 to
tories of the Convention. Although the conven- 5 years and also impose fines from 100,000 to
tion is open to any non-member state wishing to 500,000 Indian Rupees (approximately
join only Japan has signed the treat while USD2,000–10,000). In addition, ancillary
Australia is likely to accede in late 2012 as the offences in the draft Right to Privacy Bill now
relevant Bill has passed in Senate in August 2012 before the Indian Parliament includes provisions
(Lee 2012). Nevertheless many Asian countries against illegal interception (Venkatesan 2011).
have looked to the Convention for guidance on These amendments and new laws make India
new laws. more aligned to the requirements of the
Using the Convention as a benchmark, Convention.
Microsoft (2007) investigated 14 countries10 in The Indonesian government enacted Law No.
Asia to see whether their computer security laws 11 of 2008 regarding Information and Electronic
aligned with the requirements of the Convention. Transactions. It passed substantive laws similar
It shows that, in 2007, most countries in Asia to the Convention, including illegal access, ille-
could be classified as having either favourable gal interception, data interference, misuse of
alignment or moderate alignment. Only India and devices, computer-related fraud and forgery
Indonesia were at that time classified as having a (Noor 2010). China and Japan also amended their
weak alignment. Since the Microsoft report, new cybercrime laws, which aligned them more to the
laws against cybercrime have been introduced by Convention. In China, the offence of illegal
PR China, India, Indonesia and Japan. These access only applied to the access to computer
changes make the laws in those countries more systems used for state affairs, at national defence
closely aligned to the essential requirements of facilities and in the aid of sophisticated scientific
the Convention. work. This was widely criticised as inadequate.
For example, amendments to the “Information Consequently, Amendment VII of the PRC
Technology Act (IT Act), 2000” (India IT Act Criminal Law was promulgated in February
2000) were adopted by the Parliament of India 2009, corrected this deficiency and illegal access
and ratified on February 5, 2009. The “Information to a computer system in areas other than those
Technology (Amendment) Act, 2008” (IT Act previously proscribed could be sanctioned
2008) reflected largely the requirements of the (Article 285). The amendment also added sanc-
Convention (Council of Europe 2009). Apart tions for those who provide a tool or process,
which is solely used for illegal access and unlaw-
10
ful control of a computer system in section 3 of
The countries investigated include Australia, China,
Hong Kong, India, Indonesia, Japan, Malaysia, New Article 285—in effect potentially criminalising
Zealand, Philippines, Singapore, South Korea, Taiwan, crime-ware.
Thailand and Vietnam.
4 Cybercrime in Asia: Trends and Challenges 57
In 2009 Japan revised its Penal Code to further In summary, laws against cybercrime in most
address problems of cybercrime paving the way countries in Asia are either favourably or moder-
for ascension to the Convention. The revision ately aligned with the Convention. However,
made punishable the creation or distribution of a dilemmas still exists when it comes to the inter-
computer virus, acquisition or storage of a virus, pretation of certain types of content crime, and it
and sending emails containing pornography is likely that Asian countries (like the USA) may
images to random groups of people. The amend- only join the convention with exceptions to the
ments also strengthened investigative powers by protocols on content crime.
permitting data to be seized or copied from com-
puter servers that are connected via online net-
works to a computer seized for investigation. 4.4.1 The Development of the
Authorities are also given the power to request Budapest Convention
Internet service providers to retain communica-
tions logs, such as the names of email senders Although the Convention is widely considered to
and recipients, for up to 60 days (Kyodo 2011). be the first international convention on cyber-
From the discussion above, we can see that crime, and is accepted as such by the UN, some
countries in Asia are not only amending their laws countries regard it as a regional rather than inter-
to regulate offences against the confidentiality, national treaty. Harley (2010) argued that,
integrity and availability of computer data and although the Convention is not strictly a regional
systems, content offences are also a focus. agreement, it is also not a global convention as
Publishing or transmitting obscene material (espe- there is only one non-Member state of the CoE
cially obscene material involving a child) is now (the USA) which has ratified the Convention.11
punishable in most Asian countries. The degree of participation of countries in Asia
However, there is still little consensus on what region in the Convention is limited, and many
constitutes content crime within the very diverse countries have yet to fully develop their cyber-
Asian region. It has been observed that, in Asia, crime laws to the requisite standard. For example,
notions of obscenity and pornography/erotica differences between Chinese laws and the
vary widely from country to country. For exam- Convention may be the reason why China has not
ple, compared to people in China, Taiwan and signed the Convention. Although recent amend-
Hong Kong, the Japanese might have a higher ments to its criminal laws have made China’s legal
tolerance to erotic materials. Islamic countries responses to cybercrime more aligned to those of
have a much less tolerant approach to obscene the Convention, there still remains inconsistency
materials. Many have a “zero tolerance” approach between Chinese criminal procedural law and the
where any form of nudity is recognised as being requirements of the Convention, especially in
obscene (Broadhurst 2006a). regard to search and seizure for the collection and
Many countries (e.g. Australia, Italy, Norway, production of computer data.
Sweden, Switzerland, United Kingdom, China, Countries such as China, Russia and India
Iran, Saudi Arabia, Burma, Vietnam, Singapore and were not involved in the development of the
Thailand) attempt to exercise control over undesir- Convention and have at times argued that a UN
able or illegal content by blacklisting websites. treaty or code would be more appropriate. This
Although there is near universal criminalisation of seems to be reflected by a senior police officer
child pornography, most Internet content crime, from China who stated (cited in Chang 2012):
including those designed to incite racial or religious …the Council of Europe has been in contact with
vilification crime are not criminalised. Some coun- China, trying to persuade China to amend its law to
tries (e.g. China, Singapore, Pakistan) also filter fit the requirements of the Convention. However,
social networking sites; however, it is also evident
that many attempts at blocking or filtering web
access can be readily overcome (OpenNet 2010). 11
Japan has ratified the Convention on July 3, 2012.
58 R. Broadhurst and L.Y.C. Chang
China did not care much about this issue then. over-estimated in the context of a UN sponsored
And, anyway, when they were drafting the conven- process. Fears among the advanced technological
tion, they did not invite China to join in the draft-
ing. Now they want us to join, we are not states that a UN instrument might result in a
interested. “dumb” down version of the CoE convention will
have to be addressed in order to re-activate a
In contrast the Taiwanese Government has more widely accepted treaty format (Masters
expressed an interest in signing the Convention 2010). The reluctance of Brazil to sign on to the
on Cybercrime, but is hindered by its ambiguous CoE convention due to concerns about the crimi-
political situation, where it is not recognised by nalization of intellectual property (Harley 2010),
the Council of Europe as a country (Chang however, shows that agreement will not be pos-
2012). sible on all issues. Traditions of dual criminality
Given the limited degree of participation of in mutual legal assistance matters will remain a
countries in Asia in the Convention, China along significant hurdle and a hybrid or two-tiered uni-
with India, South Korea, and a number of other versal or UN treaty in tandem with the CoE may
developing countries recently initiated a proposal emerge. A global convention on cybercrime was
to create a new global cybercrime treaty. More given further impetus by the recent recommenda-
than 50% of the world’s population, or an esti- tion of the 12th United Nations Congress on
mated 40% of all Internet users, do not come Crime Prevention and Criminal Justice (United
under the auspices of the CoE Convention. Nations 2010, para 32). Given harmonisation of
The CoE’s cybercrime convention needs to be responses to non-traditional security threats is
expanded or re-invented to capture the phenom- relatively novel, the CoE and Commonwealth
enal growth of the Internet especially in Asia. examples will be useful guides to a truly univer-
Previous attempts to develop a UN convention on sal treaty.
cybercrime may also need to be re-activated as
circumstances have changed considerably since
the late 1990s when the CoE began the lengthy 4.5 Future Developments
process of creating the convention through diplo- in Cybercrime Law
matic and expert dialogue. The absence of effec-
tive regional mutual legal assistance and As the Convention is based on the types of cyber-
cooperation in criminal matters in ASEAN and crime that originated in the late 1990s, a number
wider Asia (Gordon 2009), especially cybercrime of new problems and attack methods are not
(Thomas 2009) may be addressed via another explicitly covered by the Convention, and these
iteration of the convention engaging those parties will require attention in future iterations. These
not originally at the table. include the following.
For some developing countries, the 2002
Commonwealth Nations model law on computer-
related crime and international cooperation pro- 4.5.1 Botnets
vides guidance especially useful for those
jurisdictions sharing a common legal history. The use of botnets is arguably the most significant
Indeed it had been estimated that over a thousand development in cybercrime to arise since the
bilateral treaties between Commonwealth States original signing of the Convention. Using large
are required to ensure adequate mutual legal numbers of networked infected-computers, bot-
assistance (United Nations 2010). net operators can launch highly damaging attacks,
Developing countries may be reluctant to sign including such serious crimes as DDoS attacks. It
on to the CoE convention because of the high can also be used to send out massive numbers of
standards of procedural law and cooperation spam and phishing messages. It is estimated that
required. The depth of the digital divide and the 80% of phishing incidents are related to botnets
difficulties of creating consensus should not be (Schjolberg and Ghernaouti-Helie 2011). Large
4 Cybercrime in Asia: Trends and Challenges 59
botnets with hundreds of thousands of computers activity. The use of freely available tools to mask
have been discovered, and these have been IP addresses, locations and identities makes the
employed for purposes of cyber-terrorism and task of law enforcement more difficult, as does
cyber-warfare. Botnets may mimic in some ways the use of encryption programs to protect data
a form of cyber-organised crime (Chang 2012). from third party access (see Chu, Holt and Ahn
Using bot-infected computers as springboards 2010). While these tools also have legitimate
to launch cyber attacks, criminals can avoid inves- uses, their easy availability to cyber criminals
tigation or disturb investigation as the compro- may need to be addressed in future iterations of
mised computers are usually located in different cybercrime law. Indeed, some countries already
countries and there are still no guidelines for have specific law enforcement powers to compel
international cooperation on investigation. Botnets the release of encryption keys.
are now available for lease or purchase and can be
obtained on-line for a reasonable price. Criminals
without a technology background are able to 4.5.4 Social Networking
launch cyber-attacks by using readily available
malicious toolkits or they hire hackers to do so. A considerable amount of cybercrime—includ-
As bot-infected computers’ sellers and buyers can ing online harassment, stalking and child groom-
potentially be located in different countries, real- ing—is made easier through the use of social
time cross-border cooperation in criminal investi- networking sites such as Myspace and Facebook.
gation becomes essential. These services are ideal for facilitating social
contact and business relationships, but they also
afford insufficient protection to unsophisticated
4.5.2 Cloud Computing and vulnerable users such as children. Greater
attention to the possibilities for law enforcement
This relatively new configuration of data storage monitoring of such sites, assisted by the private
and access is a form of shared data warehousing sector entities involved, may be required in the
long used by generic service providers such as interests of public safety. In turn, this may neces-
“gmail” and “yahoo” but brings new concerns in sitate a regulatory response that connects sex
relation to cyber-security. One problem may be offenders and law enforcement databases in a
access to or retention of evidentiary data such as more systematic way. Counter-arguments based
log or ISP address data, for law enforcement. on privacy concerns usually ignore the privacy
“Cloud” computing provides computation, soft- and safety rights of victims of cybercrime.
ware, data access and storage services often at
cheaper costs allowing users to store their data at
remote storage facilities provided by service 4.5.5 A Universal Harmonised
companies or to use software provided by those Cybercrime Law
companies. Users no longer need to physically
store their data on their own computer or buy In order to fight transnational cybercrime, it is
software for themselves. While it may be conve- widely agreed that there is a need for an interna-
nient for users, cloud computing has the potential tional convention that has universal application.
to become a barrier to successful crime investiga- The EU and the USA support the CoE’s
tion (Schjolberg 2010). Convention on Cybercrime and are encouraging
more states to sign and ratify it. They see a pro-
cess of socialising the Convention as the best way
4.5.3 Anonymity and Encryption forward and are opposed to the distraction of a
UN treaty and the watering down of its scope by
The relative anonymity with which people con- excluding intellectual property offences, among
duct themselves online can lend itself to illicit others (USA 2011, p. 9):
60 R. Broadhurst and L.Y.C. Chang
The development of norms for state conduct in CoE’s Convention on Cybercrime is outdated,
cyberspace does not require a reinvention of cus- and did not address the problem of how to control
tomary international law, nor does it render exist-
ing international norms obsolete. Long-standing the use of the Internet in the spread of ideas or
international norms guiding state behavior—in skills relating to terrorism and cyber terrorism.
times of peace and conflict—also apply in Neither does the current Convention, according
cyberspace to this critiques put any emphasis on problems
Despite the efforts of the USA and Europe, the such as identity theft and the emergence of social
Convention has not reached a similar level of networks and microblogs (Isakova 2011). If USA
acceptance in other regions and countries outside policy is any guide to the likelihood of significant
the European region. changes in international approaches to cyber-
A new global cybercrime treaty was discussed crime developments that restrict legitimate access
at the 12th United Nation Congress on Crime to the Internet rather than combat illegal activi-
Prevention and Criminal Justice in Salvador, ties will be unwelcome (USA 2011, pp. 19–20).
Brazil (United Nations 2010) and a draft treaty
presented by Norwegian Judge Stein Schjolberg
and Professor Solange Ghernauti-Hélie from the 4.6 Conclusion
University of Lausanne. This outlined measures
similar to the Convention but took into account This chapter briefly reviewed developments in
the criminal innovations noted above, such as cybercrime and the law-enforcement response in
phishing, bot-nets, spam, identity theft and ter- Asia. We noted the rapid rise of cybercrime as a
rorism (Schjolberg 2010). Compared with the problem and the relatively underdeveloped multi-
CoE’s Convention, the Draft replicated the proce- lateral response to it. Although the Budapest
dural law of the convention but deleted references Convention established a good base to harmonise
to intellectual property offences in cyberspace. the differences in laws and regulations against
One of the key norms and standards identified in cybercrime between different countries, the
the USA’s promotion of the rule of law in the Convention has not been widely adopted by many
“International Strategy for Cybercrime” was the Asian countries or indeed as yet other parts of the
protection of intellectual property and its elimi- world. While this may be attributable to inconsis-
nation from a proposed UN cybercrime treaty tencies with laws and regulations in some coun-
illustrated the significant differences that con- tries, for others there is reluctance to sign on to
tinue to undermine efforts to harmonise cyber- what is seen as essentially a European instru-
crime laws. The Draft also proposed additional ment. Even if laws are moderately or fully aligned
criminal offences such as identity theft, mass with the Convention, they may still not wish to
coordinated cyber-threats against critical infra- sign the Convention. This problem is unlikely to
structure, terrorism and the most serious cyber- be solved in the near future, and may frustrate
attacks including the criminalisation of cross-national cooperation on cybercrime investi-
crime-ware and attack toolkits. Schjolberg (2011) gation and prosecution. With the development of
also proposed an international criminal court or new technologies such as cloud computing,
tribunal for cyberspace because not all countries “smart” phones and social media, as well as the
are willing to cooperate or are able to cooperate emergence of botnets and the expansion of
and an international criminal court or tribunal encryption, the Convention requires updating.
will be able to take action to investigate and pros- Creating a network for illegal purposes and
ecute transnational cyber criminals. selling or renting established botnets to commit
Russia has also sought a UN convention or facilitate criminal activities along with so-
against cybercrime and along with China has called “attack toolkits” (e.g. ZeuS and Spyware)
urged the UN to adopt a voluntary code. The should be more widely criminalised and may
Russian Government has argued that the current help reduce organised crime in cyberspace.
The widespread incidence of identity theft as a
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4 Cybercrime in Asia: Trends and Challenges 63
money from street vendors, small businesses, and with incomplete findings on the types of illicit
entertainment agencies; it was also reported that activities of the Asian crime groups. This condi-
the police crackdown on the sex trade compelled tion may be attributed to the fact that Asian
Korean gangsters (jok-pok) to seek alternative organized crime groups are exceedingly secretive
sources of income (“South Korean police plan and difficult to infiltrate: there has been an over-
intensive crackdown on organized crime” 2008). reliance on secondary sources, such as law
Whether the illegal activity is loan sharking in enforcement and journalistic accounts (Zhang and
Macau resulting in a contract murder in Toronto Chin 2008). Consequently, this reliance on news
(Canada), stock manipulation and fraudulent media outlets has resulted in inconsistencies when
accounting in Osaka (Japan), or smuggling nar- discussing the types of legitimate and illegitimate
cotics to South Korea via the United States and activities of Asian organized crime groups.
Mexico, the examples used above illustrate the For example, previous research has found that
transnational and international character of orga- Asian organized crime syndicates have engaged in
nized criminal enterprises (Chin et al. 1998; c.f. transnational narcotics trafficking and human
Zhang and Chin 2003). For the purposes of this smuggling throughout the Americas (Hudson 2003;
paper, an “organized crime group” is defined as “a Miro 2003; Richard 1999), while other findings
structured group of three or more persons existing have disputed those claims (Chin 2009; Finckenauer
for a period of time acting in concert with the aim and Chin 2006; Lo 2010; Zhang and Chin 2003,
of committing one or more serious crimes or 2008). With such contradictory results that emerge
offenses … in order to obtain, directly or indi- out of state-sponsored research and academia, pop-
rectly, a financial or other material benefit” ular forms of entertainment such as movies may be
(Finckenauer and Chin 2006, p. 22). In this paper, one of the most accessible ways that the public
the term “triad” is used primarily to refer to orga- gains information about triads, yakuza, and jok-
nized crime groups that originate and operate out pok in their respective countries. It behooves us to
of Hong Kong and surrounding areas (e.g., critically examine the contents of those films to dis-
Kowloon, Macau) (Chin 1995; Song and Dombrink cern how they might shape the public’s perception
1994); the term “yakuza” is used primarily to refer of crime groups in their countries.
to organized crime groups that originate and oper- Second, if movies about triads, yakuza, and
ate out of Japan (Yamagata 2001); the term “jok- jok-pok glamorize gangster life, by giving the
pok” is used primarily to refer to organized crime impression that gangsters dominate cityscape and
groups that originate and operate out of South city life and live the “good life,” surrounded by
Korea. Although Lee (2006) uses the term “keon- gorgeous women while their relations with other
dal” to describe Korean mafia-like figures, it is gangsters are marked by a code of honor and
used in a singular nominative sense; the term “jok- chivalry (Yin 2009), then such popularly held
pok” (people of violence), however, describes preconceptions about gangster life in Asian gang-
Korean organized crime groups as a collective sters movies warrant a serious examination of
whole, similar to the way “triad” and “yakuza” are their accuracy and such enduring stereotypes.
used. In this paper, we use the broad term “Asian Assessing the accuracy of Asian gangster stereo-
gangsters” to refer to organized crime groups that type in cinema is a topic that has not been
engage in offenses for financial and material gain addressed by previous research. This paper rem-
from the respective countries of China (Hong edies that deficiency in the existing literature.
Kong), Japan, and South Korea. This paper exam- Third, some have asserted that the growing
ines the portrayals of Asian gangsters in Asian number of films about triads—and perhaps Asian
(Chinese, Japanese, Korean) cinema. gangster films in general—in Hong Kong may
There are several reasons why an examination promulgate fear amongst the viewing public by
of Asian gangsters in cinema is warranted. First, sensationalizing their dangerousness and threat
findings from previous research on Asian orga- to society (Finckenauer and Chin 2006, p. 101).
nized crime groups are inconsistent and peppered Such fear mongering in fact may empower
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema 67
cooperate with other triad factions, criminal syn- travel from the country of origin through transit
dicates, and tongs, such connections have the countries, and ultimately, to destination countries,
potential to enhance international economic which require the complicity of entrepreneurs in
opportunities, concurrently planting the seeds of the private sector, immigration agencies, and law
institutionalization (Hagedorn 2009; Joe 1994). enforcement. Academic researchers, however,
Triads have presently cooperated with organiza- claim that narcotics trafficking and human smug-
tions who were once rivals and other Asian crime gling out of Asia are carried out by independent
syndicates to create a cohesive structure that entrepreneurs who form temporary criminal
allows them to take advantage of weaknesses in enterprises that are opportunistic and nonhierar-
international law enforcement, borders, and gov- chal, ranging from three to five individuals
ernments (Zhang and Chin 2003). (Zhang and Chin 2003), or in exceptional cases,
The literature on Asian organized groups is one talented person (Sein 2008).
marked by inconsistencies regarding the extent Again, although most research acknowledges
and characteristics of illicit criminal activities of that Asian organized crime syndicates are
Asian organized crime groups in the area of involved in the production and international dis-
human smuggling and drug trafficking. Often, tribution of narcotics, some have disputed claims
law enforcement and the media report and accept of transnational drug trafficking and human
the validity of Asian organized crime groups as smuggling on the part of Asian crime groups
the responsible culprits of the two preceding ille- (e.g., Chin 2009; Dupont 1999; Zhang and Chin
galities (Chin 1996). Bolz (1995) reported that 2003, 2008). That challenge to findings from
Asian organized crime groups have dominated operational based studies materialized from the
these industries through false front triad-owned painstaking and diligent work from those who
travel agencies, where they have planned routes, have carried out in-depth qualitative fieldwork
false identification papers, and worldwide associ- with the major players in the illicit enterprises of
ates that assist them. As an example, it was Asian organized crime groups (Chin 1996, 1999,
alleged by the United States State Department 2009; Zhang and Chin 2001, 2002, 2003, 2008).
that Hana Tours, a travel agency located in Seoul, As an example, the Golden Triangle, located in
South Korea, falsified employment information the border areas of Thailand, Burma, and Laos, is
on visa applications for their female clients. The one of the largest producers of heroin in the
diplomatic cable from the American embassy in world, but the individuals operating in it are not
Seoul alleged that Hana Tours would flood the part of any organized crime syndicate (Dupont
consular office with 20–30 visa applications in 1999; Chin 2009). Asian organized crime groups
the hopes of getting six to nine women through often decline to participate in these trades as it is
(Richard 1999). inherently risky, highly competitive, and expen-
Miro (2003) also alleges that Asian criminal sive and has the potential to destroy their gangs
organizations—triads, yakuza, “Korean-Mafia”— (Joe 1994; Zhang and Chin 2003). Asian orga-
are extremely active in Latin America, engaging nized crime group members and leaders have,
in the trafficking of women, human smuggling, however, become opportunistically involved in
narcotics distribution, and counterfeit production the drug trade and smuggling activities as entre-
and sales. Similarly, Husdon (2003) posits that preneurs (Soudijn and Kleemans 2009).
triads, yakuza, and “Korean-Mafia” operate out Despite such noted inconsistencies, there is
of the Tri-Border area of Argentina, Brazil, and consensus as to the types of illicit activities Asian
Paraguay, extorting ethnically owned businesses crime groups undertake. Triads, yakuza, and
and engaging in the manufacture and sale of jok-pok operate sophisticated multimillion-dollar
counterfeit goods. As it relates to trafficking of industries in cross-national narcotics trafficking,
women, Richard (1999) states that such offenses counterfeiting, prostitution, arms trafficking,
necessitate intercontinental cooperation and col- gambling dens, extortion, armed robbery, credit
laboration, for women who are trafficked must card theft and fraud, loan sharking, money
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema 69
laundering, fraud, contract killings, and the kid- in semi-legitimate businesses such as debt collection
napping and trading of women and minors for companies, security firms, consulting companies,
entertainment industries (Bolz 1995; Berry et al. nightclubs, and loan companies (Huang 2006;
2003; Chin 1996; Finckenauer and Chin 2006; Litner 2004). These businesses are used to
Hughes et al. 2007; Huang 2006; Kelly et al. increase their economic capital, expand their
1993a, b; Lindberg et al. 1998). These organized empire, and financially support their illegitimate
crime groups not only have the reputation to activities. Edwards and Levi (2008) and Chin
allow them to engage in such activities, but they (1996) state in their research that Asian organized
also have the skills (e.g., specialized workers) crime groups use these businesses as fronts for
and connections to maximize profits while illicit businesses such as protection rackets and
expanding across international borders (Edwards extorting local independent Asian businesses.
and Levi 2008; Chu 2005; Xia 2008). To operate in both transnational and locally
Asian organized crime groups are able to based legitimate and illegitimate markets, Asian
effectively operate illicit activities precisely organized crime groups have effectively used
because they have motivated customers who intimidation, threats, and violence against other
demand their services (Edwards and Levi 2008). criminal syndicates, criminal entrepreneurs, law
For example, Dupont (1999) stated that there are enforcement, and government officials or the
over fifteen million opium addicts in China, general public (Chu 2005; Lindberg et al. 1998).
making the heroin industry a high-demand, mul- The use of violence creates absolute power that
tibillion-dollar industry. To meet that demand protects and establishes control of monopolistic
and to evade detection, Asian crime groups enterprises (Huang 2006; Xia 2008). This control
employ tactics (e.g., compartmentalization) to is commonly done through shootings, kidnap-
avoid detection (e.g., use of runners and enforc- pings, assassinations, car bombings, assaults, and
ers). For example, enforcers are responsible for intimidation (Litner 2004; Lo 2010). For exam-
ensuring the safety of the organized crime group ple, in the 1990s, Asian gangsters intimidated
and its markets while runners perform the risky individuals and actors to gain control of the film
task of transporting large quantities of contra- and entertainment industry (Chu 2005). One of
bands (Levitt and Venkatest 2000). Those the most prominent forms of violent crimes com-
employed in such roles accept the risks of the job, mitted by Asian organized crime groups is that of
including death, injury, and arrest. However, extortion, as gang members intimidate and
Asian gangs have often employed the vulnerable, threaten violence for “money” (e.g., protection
impoverished, and unemployed by delegating fees) and political considerations (Chin 1996).
risky tasks to them (e.g., drug mules) due to their Asian organized crime groups also engage in
expendability (Dupont 1999; Huisman 2008). intra-gang and intergang violence. Intra-gang
In addition to their illegitimate activities, Asian violence is based on the strict codes of conduct
organized crime groups also have legitimate and and oath allegiances, as members are obligated to
semi-legitimate businesses as they become insti- remain faithful to their groups based on fear of
tutionalized (Hagedorn 2009). Asian crime groups severe gang discipline (Zhang and Chin 2003;
cloak their criminal identities in the guise of legit- Bolz 1995). Intergang violence is more frequent
imacy and benign sociality by penetrating into as violence can erupt due to disrespect, settling
politics and to uphold some sense of “Mianzi” or conflicts, and eliminating competitors from
“face” (Chin and Godson 2006; Huisman 2008). specific markets (Chin 1996). However, Asian
The triads, yakuza, and jok-pok have been known organized crime groups try to avoid violence all
to invest in legitimate businesses such as bars, together as it provides unwanted attention that
restaurants, hotels, casinos, and the entertainment could disrupt gang activities (Joe 1994).
industry (e.g., film production companies; talent The methods employed by Asian crime groups
scout agencies) (Chu 2005; Edwards and Levi have also affected government as well. Graft and
2008). They also have been known to be involved bribery of public officials for “favors” has resulted
70 P.T. Lankin and P.C. Shon
in what has been termed “protective umbrellas” that most of the public in Asia do not feel like
(Van Duyne 1996). A “protective umbrella” is their everyday lives are affected in any way by
made up of corrupt members of political parties, Asian gangsters.
army officials, and the police, who often cooper- We contend that there needs to be serious
ate and provide favors and privileged information attention placed on Asian gangsters in cinema
to Asian organized crime syndicates; known as to determine the validity of these portrayals for
“black gold politics” (Huang 2006; Zhang and several reasons. First, much of the existing
Chin 2008; Lo 2010), public officials in turn scholarly work inconsistently reports on the
receive cash, drugs, lavish dinners, and sexual types of illicit activities of Asian organized
favors from crime groups in exchange for crime syndicates, specifically those of human
confidential information. The effect of “protec- smuggling and drug trafficking. As there is no
tive umbrellas” is to weaken the state’s legitimacy universal consensus, Asian gangsters in cinema
as the government has protected criminal enter- play a significant role in how the public per-
prises by providing financial support and politi- ceives organized crime groups and their activi-
cal information to these organized crime groups ties, which may lead to the creation and
(Chin and Godson 2006; Huang 2006; Xia 2008). perpetuation of undue fear in the public (Chu
It has been shown that Asian organized crime 2005). Second, scholars have often blamed the
groups have cooperated with members of politi- media for manipulating the fear surrounding
cal parties by providing services such as kidnap- Asian organized crime groups; however, no
ping and assassinations and in return for some scholarly work has examined how these gang-
legal leeway which allows them to operate with ster films may perpetuate fear. This deficiency
immunity (Litner 2004). For example, if orga- may be due to the lack of research that exam-
nized crime syndicates in Hong Kong are deemed ines Asian organized gangs and their popular
patriotic and concerned with Hong Kong’s pros- representation. Gangster films may also create
perity, they are given patriotic immunity in the unrealistic expectations of glamour and excite-
crimes they commit despite the fact they pose a ment amongst marginalized adolescents who
long-term social, political, and economic threat may be allured to such thug life based on inac-
(Bolz 1995; Lo 2010). curate portrayals. It is therefore necessary to
Triads, yakuza, and jok-pok have always been examine if the portrayal of Asian gangsters
in the public spotlight because of the menacing leads to the creation of fear and false expecta-
ways they are portrayed in film and in the media. tions of good life in the viewing public. Third,
However, in reality, most gangsters are less color- victims of Asian crime groups may be reluctant
ful than the portrayals in Asian gangster cinema to report their victimization (e.g., extortion) to
(Litner 2004). For instance, some have contended authorities or even family members (Chin
that the Asian film industry has offered glamor- 1996); if the potential discourse around victim-
ized depictions of these secret societies of gang- ization is shrouded in secrecy and threats, the
sters which has created myths and misconceptions fictional criminal activities of gangsters in films
(Zhang and Chin 2003). The media has often may be the only source of information about
accepted the exaggerated and stereotypical views the crime groups. It therefore behooves us to
of Asian gangsters without reliable empirical evi- examine the portrayals of Asian gangsters and
dence which has contributed to the inconsisten- their illicit activities in cinema to discern the
cies reported in the literature (Zhang and Chin public stereotypes such films may engender in
2008; Chin 1996). Zhang and Chin (2008) found viewers. The purpose of this study is to build
that Asian crime syndicates may be more of a upon previous literature by examining the
cultural icon in the media as they are only activities of Asian gangsters in film, their accu-
involved in about 5–10% of all crimes. This racy, and the effects such films may cultivate in
finding is consistent with Chu’s (2005) findings viewers.
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema 71
All of the films viewed were foreign language the gangster films in all three of the countries
films that had English subtitles. One of the authors examined.
happened to be an Asian gangster film aficionado The Hong Kong-based film Protégé (Chan
who selected films that would portray the most 2007) explicitly examines the international her-
plausible, realistic, and authentic representations oin trade as it relates to the Golden Triangle, as
of triads, yakuza, and jok-pok. Asian gangster well as the moral conflict that the hero (Nick)
films in particular are a genre that is quite limited faces and attempts to resolve. The film opens
in popularity and viewership. Consequently, little with voice-over narrative asking the question
is understood by outsiders concerning the catego- why people use drugs. That question, as well as
ries of Asian gangster films outside of their the scene, brims with tension, almost echoing the
respective countries, much less to the wider, inner conflict of the principal character. The scene
international, English-speaking viewers. With the begins with a close-up of Nick and then pans out
predominance of Western culture in cinematog- to an apartment which looks unkempt and dirty;
raphy, authentic Asian gangster films are suscep- viewers then are treated to a panoramic shot of
tible to be ignored or disregarded by non-Asian Nick, only to discover that the person who has
viewers as they may encounter difficulties in posed that question is a uniformed police officer.
understanding and relating to the characters in True to the form and character of cops/robbers
the film due to cultural differences and biases. genre of Hong Kong style action films (i.e., Hard-
Despite this limitation, a handful of the films in Boiled), Nick is an undercover cop who has man-
this study have received some international rec- aged to infiltrate a crime group that specializes in
ognition, and are highly acclaimed by zealous the production and distribution of heroin. Nick
movie aficionados. For this study, we selected, manages to secure the trust of Quin, the leader,
viewed, and coded this genre of often neglected and after a show of loyalty, he is named the next
films, with particular attention being paid to the successor. Viewers are led to experience Nick’s
legitimate and illegitimate pursuits of the crime struggle to be good (by fulfilling his police man-
groups, as well as the characteristics and features date) or evil (by assuming his role as the next drug
of violent acts. In the following sections we dis- king). But in addition to such individual moral
cuss two themes that emerged from the unmoti- choices and conflicts that define the hero’s role,
vated viewings, and which require further scrutiny viewers are also treated to the elaborate and trans-
based on limitations reported in previous works: national character of the heroin trade in Asia.
the varieties of illicit activities of triads, yakuza, Quin takes Nick to Bangkok and then Burma
and jok-pok, and the characteristics of violence to meet various warlords (e.g., Wa State, Shan
used in the film. State) as part of his “apprenticeship.” Viewers see
that the Golden Triangle is controlled by a private
military that is financed by proceeds from the
5.3.1 Illicit Activities of Asian international drug trade; Nick learns the supply
Gangsters in Film and demand side of the drug trade as the warlords
show Nick “World Drug Reports” prepared by
The illicit activities depicted in triad, yakuza, and the United Nations that is used to forecast world-
jok-pok movies demonstrate the full range of wide demand and sales projections. Such depic-
illicit activities of Asian gangsters in the films, in tions of the Golden Triangle are consistent with
ways that are consistent with those reported in the literature as the individual warlords seen in
the literature on Asian organized crime groups the film operating the transnational heroin trade
(Bolz 1995; Berry et al. 2003; Chin 1996; are not part of an organized crime syndicate
Finckenauer and Chin 2006; Hughes et al. 2007; (Dupont 1999). The drug warlords are merely
Huang 2006; Kelly et al. 1993a, b; Lindberg et al. independent criminal entrepreneurs (Chin 2009).
1998). International drug trafficking in particular During this trip, Quin proffers advice to Nick that
was a recurring and popular theme throughout is relevant to this study when he warns to “never
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema 73
take risks” as there is “no room for error in this various legal and illegal operations. Throughout
trade.” This statement is similar to the literature, the film, various professional and nonprofes-
as Asian organized crime syndicates forego trans- sional organized crime syndicates are seen dis-
national drug trafficking due to the inherent risk, cussing or participating in assorted ventures such
which is why organized crime groups can be seen as protection rackets, illegal smuggling of
trafficking and distributing various narcotics American alcohol, contract killings, operating of
cross-nationally rather than internationally brothels (e.g., exotic dancers and prostitution),
(Zhang and Chin 2003). illegal gambling halls, entertainment businesses
In addition to the international character of the (e.g., clubs), and local harbor. Greed and the
drug trade, Protégé (Chan 2007) also provides an need for control over these competitive multimil-
intricate and operational view of the situational lion-dollar industries are observed inducing vio-
contingencies that drug distributors and produc- lence or turf wars with other criminal enterprises
ers must negotiate. Viewers are treated to the fact as each gang seeks dominance in specific mar-
that Nick’s outfit has established an elaborate kets that are usually restricted to specific gangs
“runner system,” in addition to a highly disci- or territories. As local Okinawan gangs feel
plined and sophisticated communication protocol threatened and “squeezed out” of their once
(i.e., use of prepaid cell phones which are promptly dominant position in their business operations by
disposed after an operation) that is involved in the Gunji’s yakuzas, they call on Oba and the main-
distribution of narcotics as a way of eluding police land (Tokyo) yakuza to assist them to eliminate
detection and seizure. This tactical “runner sys- this threat in order to regain control over their
tem” shows members of Quin’s organized crime markets and provide Oba with the opportunity
group engaging in sophisticated countersurveil- for revenge for the attempt on his life.
lance and anti-surveillance measures such as These illicit activities are also prevalent in
changing carriers and cars repeatedly to ensure such Japanese yakuza films such as Street Mobster
that the heroin reaches its destination. and Pale Flower. The film Pale Flower (Iwatsuki
The use of such a “runner system” is a reality, et al. 1964) illustrates the daily operations of an
as Levitt and Venkatest (2000) state that the run- illegal gambling hall. A yakuza gangster (Muraki)
ners have the risky task of avoiding police seizure mentors and collaborates with his love interest
transporting large quantities of narcotics by what- (Saeko) in cheating other yakuza gangsters in
ever means necessary. This enterprise is fairly high stakes games for large financial gains. This
elaborate as it has specialized workers known as relationship leads to a destructive and deadly out-
“head chefs” who manufacture the drug in gang- come as Saeko’s need for excitement results in
operated warehouses to make distribution easier. her inevitable demise. Gambling dens and more
By employing skilled workers such as the “head sophisticated, elaborate activities are also por-
chefs” seen in the film, Edwards and Levi (2008) trayed in the film Street Mobster. In Street
and Chu (2005) corroborate the accuracy of the Mobster (Fukasaku 1972), a yakuza gangster
movie’s portrayal as it allows them to success- (Isamu Okita) tries to reestablish his standing
fully engage in drug trafficking activities. with his boss (Yato) and an aspiring gangster
The film Sympathy for the Underdog (Shundo (Kizaki). Isamu is recently released from prison,
et al. 1971) depicts a yakuza gang leader (Gunji) only to find a significantly advanced criminal
and his loyal followers who are forced out of world than that when he received his prison sen-
Tokyo and into the smaller town of Okinawa tence. Throughout the film, Isamu can be seen
after a failed assassination attempt on a boss trying to restore his yakuza gang’s dominance in
(Oba) of a more powerful sovereign yakuza gang markets as they actively involve themselves in
by one of Gunji’s men. In Okinawa, Gunji’s competitive markets such as gambling dens,
yakuza gang attempts to affirm his gang’s legiti- extortion rackets, kidnapping, procuring women
macy by using threats, violence, coercion, and for brothels, and operating semi-legitimate enter-
the yakuza’s feared reputation to gain control of tainment businesses (e.g., bars and clubs). Similar
74 P.T. Lankin and P.C. Shon
to the film Sympathy for the Underdog, Isamu and rival crime groups, putting business before
failed to adapt to the changing ways of the yakuza. past friendship. Such a capitalistic view of rela-
He resorts to physical and violent encounters tionships is consistent with the literature as
with opposing gangs who also strive for control Dupont (1999) stated that high demand makes
and power which ultimately results in the death Asian crime groups actively participate and com-
of Isamu. pete in the market. Both gangs in the film
The depictions in all three of the noted Japanese acknowledge that this business is very gang-
yakuza films provided accurate and consistent oriented and monopolistic.
portrayals of yakuza’s illicit activities in relation The sophisticated drug enterprise is reflected
to the literature. The effective visual representa- in the Hong Kong blockbuster Infernal Affairs
tions of the yakuza’s use of violence, threats, and (Lau et al. 2002) as well. Philosophically, the film
intimidation against other criminal syndicates deals with the battle between good and evil, duty
allow for these gangs to operate in their varied and versus desire; such a moral debate is contextual-
extensive sophisticated multimillion-dollar indus- ized in the lives of an undercover cop who is
tries as stated by Chu (2005) and Lindberg et al. planted as a mole in the triads and a triad member
(1998). These criminal tactics allow the gang to who is planted as a mole in the police force. The
protect and establish power and dominance over film unfurls the war, violence, and conflict
their monopolistic enterprises by effectively miti- between the police and the triads over the organi-
gating future threats or competition (Huang 2006; zation’s illicit activities, between forces of good
Xia 2008). Such practices allow the various and evil. The main premise of this movie is that
yakuza families to successfully manage and both the police and the triads have infiltrated each
control their gambling dens, extortion rackets, other’s organizations. Lau King Ming is an
kidnapping, and trading of women for entertain- inspector in the police working undercover for
ment industries, as shown in films, specifically triad leader Hon Sam. Lau is paid to tip Sam off
Sympathy for the Underdog (Bolz 1995; Kelly to any raids or other police activity. However,
et al. 1993a, b; Lindberg et al. 1998). Superintendent Wong Chi Shing also has pene-
A South Korean film that focused on orga- trated Hon Sam’s crime group with an undercover
nized crime drug enterprises is the classic gang- officer (Chen Wing-Yan). Triad boss Sam can be
ster film Friend (Seok and Kwak 2001). In the seen in the film operating a strict enterprise where
film, Joon-Suk and Dong-Su are best friends who Chen is forced to sniff and taste the powder to
grew up in the same neighborhood, both admir- ensure that it is the best quality to traffic and dis-
ing the lifestyle of Joon-Suk’s father who is a tribute. In the film, once the quality of the narcot-
powerful boss in a local organized crime group. ics has been verified by members, the triads begin
As the years pass, they lose contact and join sepa- importing shipments of “AA + Cocaine” from
rate organized crime groups. Joon-Suk assumes Thailand. Despite being tipped off by Chen, Sam
the role of a leader of a criminal organization monitors police channels to ensure the protection
after the passing of his father, while Dong-Su of his enterprise from the police.
becomes a powerful leader of Joon-Suk’s rival A Bittersweet Life (Park et al. 2005) depicts
organization. The potential conflict between the the violence that surrounds a gang’s illicit busi-
two principal characters is set. nesses. The main character, Kim Sun-Woo, is an
In the film, Joon-Suk’s crime group engages enforcer and manager of Mr. Kang’s (boss) hotel.
in illegal deep-sea fishing (e.g., shark fins) while As an enforcer, he ensures the protection and
Dong-Su’s group participates in illegal bidding security of the organized crime group’s legiti-
through extortion in the construction trade; Dong- mate and illegitimate enterprises against com-
Su’s group also specializes in trafficking and dis- peting rival gangs. This criminal organization
tribution of Philopon. Despite having shared owns and operates the hotel where it employs
commonalities when growing up, both Joon-Suk Russian and Filipino women as “dancers” for
and Dong-Su are now involved in a competitive their clubs, entertainment businesses, and prosti-
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema 75
tution. Through legitimate “front” businesses as well as trafficking of women. The film thus at
such as the hotel, they are able to increase their least partially corroborates the findings of previ-
revenue while being able to discretely transfer ous works which claim that crime groups’
money without suspicion. According to Chu involvement is an integral component of the
(2005) and Edwards and Levi ( 2008), Asian human smuggling and trafficking business at
organized crime groups have been known to some level (Chin 1999; Kwong 1997).
be involved in legitimate and semi-legitimate
businesses such as bars and restaurants which is
consistent with the film’s portrayal. However, as 5.3.2 Violence
Sun-Woo’s boss says, “You can do a hundred
things right, but do one thing wrong and it can Throughout nearly all of the movies examined,
destroy you.” This may be why the gang is not there were countless—too many to count—
seen involved in the narcotics market, as the depictions of assaults, stabbings, and murder. In
risks are too great. the gangster film Friend (Seok and Kwak 2001),
The film Failan (Ahn and Song 2001) is a love the reputation of jok-pok’s penchant for violence
story told through the life of a petty Korean gang- and the fear they instill is clearly visible when a
ster (Lee Kang-Jae). Lee Kang-Jae is a loser in all teacher who disciplines Joon-Suk by lashing him
sense of the word. He is old, but garners none of with a stick realizes his faux pas. When the
the respect of a person his age; although he is the teacher realizes that Joon-Suk’s father is a jok-
longest serving member of his gang, even his pok (Korean organized crime group) doo-mok
juniors will not show him the proper deference. (leader), he quickly regrets his actions as he fears
In fact, the opening scene shows Kang-Jae com- violent retaliation. The effect of a reputation for
ing home to a filthy apartment (after he is released violence and the fear it generates ensure that their
from jail for having sold pornography to a minor) members are not harassed; such an instrumental
that he shares with his fellow gang member; as view of a “badass” reputation is consistent with
part of his homecoming, his roommate tells him the literature (Chu 2005; Katz 1991). Later in
that he has been demoted to a bouncer in the bar/ life, as a mob war looms between Joon-Suk and
nightclub that his crime group operates. The Dong-Su’s gangs, Joon-Suk can be seen in one
illicit activities of Kang-Jae’s crime group are scene training gang recruits how to kill with a
revealed when a female character, Failan, is knife, preparing them for “war.” However, even
introduced. though protection from one’s own gang is an inte-
One of the illicit money-making schemes that gral part of being a gangster, it is not absolute, as
Kang-Jae’s group engages in is providing women violence can be committed within the gang,
to bars and nightclubs as hostesses. Kang-Jae’s amongst themselves. Intra-gang violence is seen
group operates an employment agency as a front, depicted in Friend when Dong-Su is betrayed
which then provides falsified documents to the and murdered violently by his own men, as well
women; to extend the women’s stay in the host as his rivals, for not following protocol when
country, the crime group uses its members to dealing with a vulnerable rival leader. Such depic-
fraudulently marry the women to provide them tions are consistent with Zhang and Chin’s (2003)
with permanent residency status. The nominative findings that if leaders or members feel that the
husband is paid a kickback for his services while gang’s code of conduct is broken at any time it
the crime group “sells” the women to bars, night- could result in immediate and severe discipline.
clubs, and any employer who is willing to pay Respect and violence loom rather large in the
upfront the large sum of money spent to carry out ethos of Asian gangsters. For example, when
the operation, plus the profits. Although the pri- Joon-Suk is asked why he did not deny ordering
mary storyline unfolds between Kang-Jae and the hit of his friend Dong-Su, despite the fact that
Failan, the film provides a fairly sophisticated bribery had already been paid to court officials,
account of illegal and exploitive labor practices and all he had to do was deny that he knew the
76 P.T. Lankin and P.C. Shon
co-accused, he says: “That would have been engage in a violent altercation with Baek Jr.’s
humiliating. Me and Dong-Su are gangsters. men for overstaying their welcome in their hotel.
Gangsters shouldn’t be humiliated.” Such a proc- For doing this Baek Jr. orders that Sun-woo
lamation is consistent with what Huisman (2008) apologize.
stated when describing “Mianzi,” as gangsters try When Sun-Woo refuses to apologize, he is fol-
and keep “face.” Losing face (“Mianzi”) is a prin- lowed back to his residence, severely beaten, tor-
cipal reason for violence in the film Election tured, and buried alive, but manages to survive
(Law et al. 2005). As the respected elders of the this ordeal. When Sun-woo discovers that his
triad gang, known as “uncles,” vote and elect Lok own Boss Kang was involved in his beating for
as the new leader, Big D loses the election and not following orders, he feels betrayed. This
seeks revenge on the elders who did not vote for betrayal causes Sun-Woo to seek out another
him. In one scene, Big D’s underlings kidnap two organized crime group who dealt specifically in
of the elders who did not vote for him, put them arms trafficking to exact revenge. When Sun-
in a nailed crate, and roll them down a hill, Woo’s motives are discovered by the gun dealer,
because when one loses an election it means loss a shoot-out erupts, with Sun-Woo killing every-
of “Mianzi.” This loss of face is why Big D seeks one. In the end there is a violent altercation,
retaliation for this perceived dishonor as he feels resulting in the deaths of Baek Jr., Kang, multiple
the need to restore his honor within the gang. underlings, and eventually the death of Sun-Woo,
However, Big D overcomes his bitterness when but not before completing his revenge. Although
Lok offers him a high position within the gang Chin (1996) states that intergang violence is more
which results in Big D showing his loyalty by frequent, several of the films provide rather visual
murdering betrayers within the gang to promote representations of intra-gang violence, while only
Lok’s supremacy. Despite this loyalty, and oaths a few depict intergang violence.
of allegiance to the triad code, Lok murders both Violence in Asian gangster cinema is not lim-
Big D and his wife after Lok finds out of a previ- ited to intra- and intergang violence. The film
ous assassination plot by Big D. Such a turn of Infernal Affairs (Lau et al. 2002) bases itself on
events is consistent with previous works which the war and violence between the police and the
state that strict discipline is associated with break- triads. The triads in the film also are involved in
ing the loyalty oaths, and as Lok states in the frequent shoot-outs with police, police chases,
film, “loyalty aside, you should put yourself first” and murder. The triads in this film murder
(Zhang and Chin 2003). Superintendent Wong Chi Shing by severely
Intra-gang and intergang violence is a com- beating him and throwing him off a roof when he
mon theme in Asian gangster cinema as seen in fails to reveal the identity of his undercover
the film A Bittersweet Life (Park et al. 2005) officer. Based on the film, it can be perceived that
which depicts the violence that surrounds a gang’s violence, murder, and death are very prominent
illicit businesses. The use of enforcers like Kim in organized crime. This pattern can further be
Sun-Woo is consistent with Levitt and Venkatest’s seen in the movie as Mr. Lau ends up killing his
(2000) findings that enforcers are used to ensure boss Sam, Chen, and other gang informants to
that the gang’s criminal businesses are protected protect his identity and self-interests. As Berry
through violence, threat, and intimidation. The et al. (2002) put it, sometimes money, power, and
film depicts multiple portrayals of intergang vio- self-interest are where the gangsters’ loyalty lies.
lence as Sun-Woo is constantly fighting with his This film is consistent with Litner (2004) and
gang’s rival, specifically Baek Jr. Previous litera- Lo’s (2010) findings that shoot-outs with law
ture has stated that violence erupts in settling enforcement, murders, and assaults are the most
conflicts and eliminating competitors, and the commonly used approach to ensure protection of
storyline behind Bittersweet Life attests to the their illicit activities from police intervention.
potential for intergang violence (Chin 1996). In Japanese yakuza gangster films often sensation-
one scene, Sun-Woo and another gang member alize and glamorize the violent lifestyle of the
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema 77
yakuza through graphic visual representations 1971) as after Gunji and his associates were run
that include shootings, stabbings, assaults, assas- out of Tokyo, they reacted with violence, shoot-
sinations, and bombings, resulting in multiple ings, and stabbings in order to create fear and
deaths. In the film entitled Yakuza Demon (Naitô intimidation in order to regain control over their
and Miike 2003), a small time (three members) illicit operations, which is consistent with the lit-
yakuza family called the Muto family of the Date erature (Huang 2006; Xia 2008). The constant
clan attacked the top echelon of the dominant conflict in this film is similar to Chin’s (1996)
Tendo yakuza family. The outcome resulted in findings that intergang violence is often necessary
the Tendo family seeking revenge on the much to settle conflicts or eliminate competitors from
smaller Muto family. Seiji the “Ripper” is a mem- specific markets. When the head of the mainland
ber of the Muto family who planned and orches- yakuza family discovers where Gunji is located,
trated the murder plots of the Tendo bosses which he seeks out the help of local Okinawa gangs,
resulted in devastating carnage through the use of resulting in a final shoot-out. This battle resulted
automatic weapons, shotguns, and bombs. Seiji’s in the deaths of Gunji and his soldiers as well as
boss, Muto, who had no knowledge or involve- Oba and the leadership of the mainland yakuza.
ment in the plot is attacked, beaten, and killed Rather than basing these films strictly on their
while he was incarcerated. Yoshi, the other mem- illicit enterprises, Asian gangster films have often
ber of the Muto family, is shot and killed while at glamorized violence, as exaggerated violence in
the beach. Seiji’s friend, who supplied him with films perpetuates fear and chaos in communities
weapons, is discovered hanging from a crane and where Asian criminal organizations operate.
eventually Seiji is murdered in an onslaught of Literature has shown authentic Asian organized
gunfire while attempting to flee on a boat in order crime groups use violence, threats, and intimida-
to save his life. However, Muto’s wife is allowed tion to protect their illicit enterprises, while Asian
to live because, as one gangster stated, “we gangster films seem to emphasize violence to
shouldn’t kill women, we should fuck them.” provide entertainment and excitement (Chu
Despite this, violence against women is still seen 2005). Such an assertion is inconsistent with Joe’s
in Japanese gangster films, as shown in Street (1994) findings which indicate that violence is
Mobster when Isamu’s “girlfriend” is shot and only used when necessary to protect the business
killed alongside him by the rival yakuza gang ventures because it can significantly hinder profit
(Fukasaku 1972). In Japanese yakuza films, mur- by bringing unwanted attention on the gang.
der is not restricted by sex or gender.
Violence is predominant in other Japanese
yakuza films such as Sonatine and Sympathy for 5.4 Cultivating Inaccurate
the Underdog. In Sonatine (Mori et al. 2003) a Stereotypes About Asian
yakuza leader (Murakawa), along with some sub- Gangsters
ordinates, is ordered to go to Okinawa to assist
allies who are currently in a war with a rival Our examination of Asian gangsters in cinema, as
yakuza gang. The importance of the war is down- it pertains to their legitimate and illegitimate
played at the beginning of the film, yet, through- activities and violence, found that the violence
out the film, Murakawa and his Yakuza soldiers depicted in the films dominates over the portrayal
repeatedly come under fire from the opposing of their business ventures. Although the films did
group in their residences, bars, and on the beaches portray legitimate and illegitimate business activ-
of Okinawa. Eventually all of Murakawa’s friends ities, the majority of the films significantly down-
and allies are killed. The movie culminates in a played their importance to the point where they
gun battle at the opposing gang’s compound, with almost become auxiliary. From a filmmaker’s
Murakawa emerging the victor. Ultimately point of view, representations of the details of a
Murakawa commits suicide. This outcome is sim- crime group’s business activities may not allure
ilar to Sympathy for the Underdog (Shundo et al. viewers to the universalizable aspects of storytell-
78 P.T. Lankin and P.C. Shon
ing. There is, after all, nothing sexy or glamorous influence. Through repeated depictions of brutal-
about counting money or bragging about tenfold ity, murder, torture, assault, and fighting in the
increase in profits for various crime groups. films, people may automatically accept all of
However, that omission may serve to cultivate the these crime groups to be problematic for society
viewer’s perceptions in a particular way. as these films help validate public fear. Due to the
As previously noted, almost all of the films extreme nature of the visually graphic violence in
dealt with drug trafficking and distribution as the Asian gangster cinema, the films manipulate and
prominent source of income for organized crime perpetuate fear, thereby making viewers suscep-
groups in Hong Kong and South Korea. Other tible to perceived stereotypes of traditional orga-
crimes that were depicted in these films showed nized crime syndicates (Finckenauer and Chin
brief representations of prostitution, gambling, 2006; Kelly et al. 1993a, b; Lindberg et al. 1998).
arms trafficking, loan sharking, and protection Another perspective may be that the hyperbolic
rackets. All of the depictions of their businesses forms of violence may shape the attitudes and
in film are consistent with the literature (Bolz perceptions of viewers in the opposite direction.
1995; Berry et al. 2003; Chin 1996; Finckenauer Our work indicates that despite the manifold
and Chin 2006; Hughes et al. 2007; Huang 2006; array of illegal enterprises of triads, yakuza, and
Kelly et al. 1993a, b; Lindberg et al. 1998; Song jok-pok in the films, the visual representation of
and Dombrink 1994). However, when comparing violence is what leaves a lasting impression in
the films’ depictions with the literature, there is a the cinematic experience of the viewers. The type
lack of substantial coverage of other illicit activi- of violence that we found is something that is
ties of actual organized crime groups, such as qualitatively different from Western films in the
contract killings, kidnapping for ransom, armed same genre. Using again the classic Korean gang-
robbery, fraud, and trading of women and minors ster movie Friend as an example, Joon-Suk sets
(Bolz 1995; Berry et al. 2003; Huang 2006). up Dong-Su to be killed by his men as well as one
By sensationalizing and focusing only a few of his own lieutenants. In that scene, as Dong-Su
types of violent and illicit activities, the films is about to enter his car, his trusted lieutenant
ignore that these organized crime groups operate grabs him from the rear while another stabs him
a highly secretive, sophisticated, and structured in the back with a “fish knife” (the most com-
syndicate in various legitimate and illegitimate monly used weapon in Korean gangster movies);
markets. If the public were to take the films as as Dong-Su fights off his attacker and attempts to
accurate portrayals of the gang’s activities, then run away, he is attacked again by another gang-
such representations may create misconceptions ster assigned to complete the killing.
about the actual activities of the gangs in a larger Dong-Su is stabbed no less than twenty-nine
context. Viewers may conclude that the harms times, three from an overhand hacking motion
produced by the gangs may be minimal. The and the rest in a direct frontal thrust to the stom-
directors of each film seem more interested in ach; at one point, viewers are treated to the sound
providing sensational entertainment at the cost of of the blade making dull noises against the con-
realism. But then again, filmmakers are not docu- crete post, as the blade enters and exits the flesh
mentary makers. and makes contact with the concrete post that
The findings reported here are consistent with Dong-Su is leaning on as he is being stabbed; the
Litner’s (2004) and Zhang and Chin’s (2003) attacker is carrying out the killing in a scared
comment that Asian gangsters were less colorful frenzy. Dong-Su senses that fear and the nervous
in their portrayals in cinema. Our study indicates energy of a first-time killer, and tells him, as he
that violence in Asian gangster cinema permeates lay dying, “You’ve done enough; I’ve eaten
across national boundaries and cultures, which enough.” That is, you have stabbed me enough
could result in potentially misleading perceptions times for me to die; you have done your job well.
that these groups pose a threat to the safety and As the camera pans out to a shot of Dong-Su
well-being of the citizens in the gang areas of quivering like a fish out of water as his life passes
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema 79
from his body, there is no glamour in the life of a as indicated from our work. Asian gangster mov-
gangster. There is only the brutality, the coldness ies may make the top bosses look enviable with
of the blade, and the relentless pouring of rain— their flashy suits and nice cars, but the life of
death. That is the moral message that is etched gangster underlings, and even gang dai-los,
into the minds of viewers. oyabuns, doo-moks, and hyoung-nims meet the
The same message is conveyed to the audi- same fate as their subordinates, an ignominious
ence in Breathless (Jang and Yang 2009). and impersonal death from a fish knife or a gun.
Although the title given is “breathless,” the actual Again, there is little that is admirable or glamor-
meaning in Korean translates, literally, to ous about being betrayed and stabbed to death by
“shitfly”; that title most felicitously reflects the a trusted subordinate if one is a boss. There is
life of Korean jok-poks who earn their money by little honor in betrayal.
serving as muscle for politicians and wealthy
business owners who need to clear out destitute
residents out of slums to make way for new con- 5.5 Future Trends
dominiums. Breathless tells the story of Sang-
Woon, a petty Korean gangster who works for If Asian gangster movies glorify and glamorize
his friend, a loan shark; and throughout the gangsters and their life, as some researchers have
movie, viewers get a glimpse of the underside of claimed (Yin 2009; Chin and Godson 2006), such
Korean gangsters and the people from whom findings may be explained by the presence of a
such gangsters eke out a living: poor, miserable distinct style. The triads, yakuza, and jok-pok in
men addicted to gambling who have squandered all of the films had a unique language of their own,
away their fortunes and incurred the debts of a speech pattern and vocabulary of motive, and
loan sharks. In this raw, in-your-face look at style that marked them as such; furthermore, they
gangster life in Korea, we again see the terminus all had a stylish manner of dress and comportment
of that life: Sang-Woon is first struck on the head in ways that signified their identity as a “badass.”
with a hammer by an unruly client who cannot Their body markings—scars and tattoos—bore
pay; and when he exercises compassion and the corporeal evidence of a life of agonistic strug-
decides to come back another day, his underling gle and triumph. Finally, the gangster films dra-
uses the same hammer and strikes him on the matized and foregrounded the relationships among
head repeatedly until he dies; but before Sang- men, qua men, and as brothers, and constructed
Woon dies, viewers are treated to the gurgling the men as masculine subjects, without the stereo-
sounds of blood caught in his throat, as he is type and prejudice embedded in white-dominated
struggling to utter his last words: “I have to be Western films. That is, the Chinese, Korean, and
somewhere.” The pathetic life and death of a Japanese men played the part of men, as men. In
gangster who feeds on the bottom of society are that sense, it is that image of a masculine figure
visually articulated in that scene of death. There that may be the primary source of attraction for
is no glamour; there is no glory; there is only the disenchanted and marginalized youths across
gurgling sound of blood caught in Sang-Woon’s Asia, and not necessarily the gratuitous violence
throat, and the flies that will feast on his death. in the films. The pursuit of masculinity and the
There is no hero to be found anywhere. This ethos and rituals of being an Asian gangster may
absence of a hero is one way that Asian gangster be worth pursuing in the future.
films differ from their Western counterparts The films that we chose for this project were
(Rafter 2006). selectively sampled; there are literally hundreds
To claim that gangster movies may unduly of films in the particular genre that present the
influence youths to be drawn toward gangster life activities of triads, yakuza, and jok-pok. For
as a result of glamorization of gangsters seems a future works, a more comprehensive review of
bit premature and difficult to understand, for films would add an additional empirical bite to
there is little that is glamorous about gangster life this exploratory project. Such a project, if carried
80 P.T. Lankin and P.C. Shon
out properly, may be used to verify the authentic- Berry, L.B., Curtis E. G., Elan S. L., Hudson R. A., &
ity of such films as well. But much more impor- Kollars N. A. (2003). Transnational activities of
Chinese crime organizations. Trends in Organized
tantly, these types of films may be one way to Crime, 7(3), 19–59.
reach out to disaffected youths who may be con- Bolz, J. (1995). Chinese organized crime and illegal alien
templating joining a gang; coupled with a former trafficking: Humans as a commodity. Asian Affairs,
gang-member-turned interventionist, the films 22(3), 147–158.
Black, J. (1991). The aesthetics of murder: A study in
may be used as topics of focus groups to tell and romantic literature and contemporary culture.
share the reality of gangster life to those who are Baltimore, MD: The Johns Hopkins University.
most likely to be wooed and targeted for Chan, J. W. (2000). Bruce Lee’s fictional models of mas-
recruitment. Such a noble objective would not be culinity. Men and Masculinities, 2(4), 371–387.
Chan, A. B. (2001). Yellowface: The racial branding of
hyperbole or fiction. the Chinese in American theatre and media. Asian
Profile, 29(2), 161–177.
Chan, A. B. (2007). Perpetually cool: The many lives of
5.6 Conclusion Anna May Wong (1905–1961). New York, NY:
Scarecrow Press.
Chen, C. H. (1996). Feminization of Asian (American)
We began this paper with the story of Q. Lu. He men in the US mass media: An analysis of The Ballad
met a fate similar to other fictional gangsters cov- of Little Jo. Journal of Communication Inquiry, 20(2),
ered in this paper: he met a cold and ignominious 57–71.
Chin, K. (1995). Triad societies in Hong Kong.
death, stuffed inside a barrel and dumped into a Transnational Organized Crime, 1, 47–64.
lake. The business activities of Asian gangsters in Chin, K. L. (1996). Chinatown gangs: Extortion, enter-
the films appeared to be consistent with the prise, & ethnicity. New York, NY: Oxford University
findings from previous literature; the films Press.
Chin, K. L. (1999). Smuggled Chinese: Clandestine immi-
reflected illicit businesses such as human smug- gration to the United States. Philadelphia, PA: Temple
gling, narcotics smuggling and distribution, and University Press.
loan sharking. Contrary to previous findings, Chin, K. (2009). The golden triangle: Inside Southeast
however, our work indicates that Asian gangster Asia’s drug trade. Ithaca, NY: Cornell University
Press.
films do not seduce viewers to interpret gangster Chin, K., & Godson, R. (2006). Organized crime and the
life as one of glamour and excitement. In fact, we political–criminal nexus in China. Trends in Organized
have argued that the opposite may be true, for the Crime, 9(3), 5–44.
extent and gratuity of violence found throughout Chin, K., Zhang, S., & Kelly, R. (1998). Transnational
Chinese organized crime activities. Transnational
the Asian gangster films militate against any Organized Crime, 4(3/4), 127–154.
appeal to gang membership and gang life. Chu, Y. K. (2005). Hong Kong Triads after 1997. Trends
Fictional gangsters—and perhaps actual gang- in Organized Crime, 8(3), 5–12.
sters as well—end up in prison or die a cold and Doherty, T. (1984). Creating a national cinema: The South
Korean experience. Asian Survey, 24(8), 840–851.
brutal death. That may be the very moral message Dowler, K., Fleming, T., & Muzzatti, S. (2006).
originally intended by the filmmakers, for art Constructing crime: Media, crime, and popular cul-
appears to imitate life. ture. Canadian Journal of Criminology and Criminal
Justice, 48(6), 837–850.
Dupont, A. (1999). Transnational crime, drugs, and secu-
rity in East Asia. Asian Survey, 39(3), 433–455.
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Intellectual Property Crime Online
in Asia 6
David S. Wall and Majid Yar
intellectual labour over which some form of moral This chapter critically explores what is being
or financial claim can be made to ownership. They understood as online intellectual property crime.
range from the software codes that construct the The first part looks at how intellectual property is
architecture of the World Wide Web to a range of being transformed by new technologies and why it
ingenious intangible artefacts that have become has become significant to the emerging informa-
the new real estate of virtual worlds. Not only has tion economies. The second part looks at “virtual
there been a fiercely contested struggle over theft” and specifically at how different forms of
whether or not these, sometimes valuable, artefacts informational intangibles (virtual intellectual prop-
can be owned, but there have also been many erty online) are being appropriated and causing
instances where individuals have sought to appro- concern for creators and owners: intellectual prop-
priate them from their authors. The fight that is erty piracy of music, video and software and the
taking place to control this “intellectual real estate” theft of virtual artefacts. Part three discusses criti-
has now become a prominent feature of debates cally some of the broader issues that are emerging
over the Internet because they tend to focus upon in the debate over intellectual property online.
issues relating to the ownership and control of an
environment that was initially designed to facili-
tate the free flow of information. 6.2 How Is Intellectual Property
The ability of networked technologies to dis- Being Transformed by the
seminate, share or trade informational or intellec- Internet?
tual properties in the form of text, images, music,
film and TV through information services is what We begin here by briefly mapping out just what is
has made the Internet and World Wide Web what it meant by the term “intellectual property” and
is today, and same ability is arguably driving the intellectual property law. Intellectual property is
further development of the information age. the creative product of intellectual labour and is
Networked information technologies are, however, manifested in the form of the so-called intangi-
not simply characterised by informational flows. It bles, such as ideas, inventions, signs, information
is significant that these flows are also networked and expression. Whereas laws covering “real”
and globalised (see Wall 2007, p. 50). These three property establish rights over “tangibles”, intel-
qualities, on the one hand, give the authors, cre- lectual property laws establish proprietary rights
ators or their licensees—who have a right of own- over “original” forms of intellectual production
ership or control over the creations—a highly (Bently and Sherman 2001, pp. 1–2; WIPO 2001,
efficient means by which to disseminate their p. 3). Intellectual property can take a number of
“properties”. On the other hand, however, the very recognised forms—patents, trademarks, trade
fact that they are informational, networked and glo- secrets, industrial designs and copyright.3
balised means that traditional physical and/or “cen- Copyright establishes the holder’s (e.g. an
tralised” means of controlling intellectual properties author’s) rights over a particular form of original
can be circumvented. The increased market values expression (WIPO 2001, pp. 40–41). Typical
of informational property in an information age objects of copyright include literary, journalistic
combined with relatively low levels of control that and other writing, music, paintings, drawings,
can be exerted over them simultaneously creates audio-visual recordings and (most recently) com-
new opportunities and motivations for unauthor- puter software. As the term suggests, copyright
ised appropriation or use—what has become known law grants the holder rights over the copying,
as cyber-piracy. Yet, these debates are also taking
place within the context of changing cultural, social
3
and legal meanings of intellectual property. It is a This chapter deals with the concepts of, and different
types of, intellectual property and issues relating to the
process of change that is beginning to challenge
Internet, rather than specifically focusing upon intellec-
conventional orthodoxies and legal attitudes tual property law. Each jurisdiction has its own intellec-
towards intellectual properties. tual property laws.
6 Intellectual Property Crime Online in Asia 85
reproduction, distribution, broadcast and perfor- The “digital revolution” brought about by
mance of the designated “work” or content. In networked information technologies has had pro-
essence, the holder retains ownership of the found consequences for the various different
expression and the right to exploit personally or forms of intellectual expression. The ability to
by licensing its copying, distribution or perfor- digitally copy, transfer or transmit the expression
mance in return for the payment of a royalty or a of ideas in the form of code has enabled the per-
fee. Thus, for example, if you purchase a CD fect reproduction of such content, without deteri-
recording of songs, you have ownership over the oration or degradation. Thus a digital copy of say
tangible object (the CD), but not of the musical a film, image or sound recording is indistinguish-
content of the CD, whose ownership remains able from the “original” and can subsequently be
with the copyright holder. Therefore, you are copied endlessly without any loss of visual or
legally prohibited from multiply copying, distrib- auditory detail (Yar 2006a, p. 97). Since the
uting, broadcasting or performing the content Internet is essentially a network designed to
without authorisation from the holder and the enable the effective, fast and worldwide transmis-
payment of some agreed compensation. A trade- sion of digitised code, it has become the perfect
mark, in contrast, is “any sign that individualises medium through which such content can be freely
the goods of a given enterprise and distinguishes circulated, copied and exchanged. Moreover, the
them from the goods of its competitors.” (WIPO rapidly falling costs of the equipment and services
2001, p. 68; BBC 2008). Trademarks indicate the necessary to make and share such copies, such as
source of the product, such that the consumer can personal computers, CD- and DVD-burners, hard
distinguish it from the products of other manu- disk storage and broadband Internet access, have
facturers. Words, such as slogans and company enabled users to share digital content at very little
names, drawings and symbols like logos and marginal cost (Yar 2005; 2006b).
audible signs such as music can all function as A distinctly visible expression of the new
trademarks (WIPO 2001, p. 70; BBC 2008). The informational order that is emerging in the infor-
recognised holder of a trademark enjoys proprie- mation age has been the dramatic rise in the over-
tary rights over its use, and other parties are pro- all number of registrations for trademarks and
hibited from using the holder’s mark to (mis) patents, combined with a new aggression in the
identify their own products (Bently and Sherman application of intellectual property laws to pro-
2001, pp. 900–901). Patents have as their object tect both properties and the expression of the
inventions (products or process) over which the ideas they implement. Information is now rou-
state grants the inventor rights in relation to the tinely becoming commoditised as intellectual
exploitation (e.g. manufacture and sale) of the property, including some previously in the public
invention. Once an invention is patented, it can- domain. Not only is this practice encouraging the
not be exploited by any party without the prior growth of a new political economy of informa-
permission of the patent holder (WIPO 2001, p. tion capital and new power relationships (see
17). Historically, patents have been associated Boyle 1996), but the value inherent in it is also
with tangible properties such as the chemical for- encouraging new forms of deviant behaviour to
mulae for pharmaceutical drugs, or the design appropriate the value of informational content.
specifications of engineered objects such as elec- In this way, cyberspace today not only chal-
tronic circuitry or mechanical components. lenges our conventional understanding of owner-
However, in recent years patent protection has ship and control, but it also blurs the traditional
come to also cover intangible properties, espe- boundaries between criminal and civil activities
cially computer software (which is also addition- along with some of the principles upon which our
ally afforded protection via copyright) (Stobbs conventional understandings of criminal harm
2000). Therefore, taken together, intangible or and justice are based. A good example here is a
intellectual properties are created and defended reduction in the ability of prosecutors to prove the
through copyright, trademark and patent laws. offender’s intention to permanently deprive
86 D.S. Wall and M. Yar
another person of his or her digital informational very different in nature to intellectual properties
property as would be required under s. 1 of the reproduced by analogue technology, such as
Theft Act 1968 in the UK. Consequently, impor- vinyl records or film, which degrades in quality
tant questions remain unanswered as to what with each generation of copy. This characteristic
online intellectual property crimes actually are emphasises the value of the original artefact, but
and to what extent they differ from other activities also instils an informal policing mechanism into
that we currently recognise as intellectual prop- the process. Without adequate controls in place
erty crime. Wall (2007) argues that Cybercrimes the value of digital property can (arguably) be
are behaviours that are mediated by networked lost very quickly. Consequently, running in paral-
technologies with the premise that were those lel to the growth of the Internet has been an
technologies to be removed then the cybercrime increase in the number and complexity of intel-
activity would cease. Using this criteria Intellectual lectual property laws and regulations relating to
property crime online is no different and satisfies trademarks, copyright and patents; see for exam-
the criteria as a cybercrime. It is, however, impor- ple the debates over the changes in privacy and
tant to distinguish between Intellectual property publicity laws in the USA (Boyle 1996; Madow
crimes that use the Internet and intellectual prop- 1993). These laws have intensified the debates
erty crimes that take place in cyberspace. over piracy. Thus, the intersection of the medium
of cyberspace and more restrictive intellectual
property laws became quite a potent combina-
6.3 Intellectual Property Theft4 tion, especially at a time when, as Baudrillard
observes, economic activity has become the out-
We can break down the types of losses that are come rather than the cause of cultural values and
incurred by victimisation through virtual theft. norms (Baudrillard 1994, 1998). Importantly, the
Indeed, here we encounter a basic conceptual fact that productive ideas can now be put into
inconsistency because as stated earlier, digital place without the need for expensive mechanical
media can be reproduced exactly. In fact digital manufacturing processes means that the mone-
media are simulacra (Baudrillard 1994), copies tary value of those ideas is further enhanced.
without originals, rather than copies. Because the These forms of intellectual property, trademarks,
point in question here is the “owner”s’ lack of domain names and character merchandising are
exclusive control over the property, the metaphor becoming the real estate of cyberspace—espe-
of piracy is probably more generally appropriate cially where the IP is linked to the architecture of
than that of theft—although the latter is commonly the Internet (e.g. domain names). Thus the virtual
featured in many of the online crime narratives. terrain of cyberspace is marked by the struggle
At the heart of the cyber-piracy debate is the for control over this “intellectual” real estate and
ability of those with legitimate rights to digital its value increases in proportion to the strength of
intellectual properties to maintain their control the legal and technological control that exists
over them. The problem of regulating cyber- over its dissemination. The downside is that this
piracy is largely one of policing its usage, because control makes it all the more desirable as some-
digital property, whether in written, musical or thing to be acquired for use or to be sold on.
video form, has the unique characteristic of being Intellectual property piracy follows the centu-
stored as code and, as stated earlier, being pro- ries-old practice of hijacking value by counterfeit-
duced in its original form each time the file is run. ing products (through design piracy) and making
Digital copies are identical, which creates new copies of the original and then passing them off as
problems for controlling their dissemination in originals. The trademark originally emerged as a
ways that preserve income streams. They are trusted sign to counter piracy by indicating to the
purchaser that the product is genuine and pro-
duced by quality manufacturers (see Sherman
4
This section is drawn from Wall (2007), pp. 94–101. and Bently 1999). However, in the age of mass
6 Intellectual Property Crime Online in Asia 87
consumption the trademark has acquired its own the proceeds paid into a bank account halfway
status and value, independent of the quality of round the planet. The whole operation might take
work—especially when linked to brands. For as little as a few days, and by the time the decep-
goods carrying trademarks, the Internet has tion has been detected, the proceeds of the scam
become a natural marketplace,5 especially follow- have been removed from the bank account and
ing the popularity of e-commerce and Internet the perpetrators gone. Alternatively the images
auctions such as eBay. These sites became a natu- may be traded online for other similar pirated
ral forum for selling counterfeit branded hard informational products. Such piracy does not stop
goods, such as watches and designer clothes and with images, it could just as easily be software,
accessories, and also counterfeit branded soft music or video as the later discussion outlines.
goods that have been copied and packaged, or The appropriation of informational property may
made available to download, and they still are, be motivated by libertarian (see Akdeniz 1997)6
despite judicious policing efforts. Thus it is unsur- artistic, moral, even educational reasons and not
prising that one of the most commonly reported simply by the prospect of financial gain. See, for
forms of misrepresentation on Internet auction example, the three culturally different, yet
sites is selling counterfeit goods that are adver- significant, examples of the protection of popular
tised as authentic items. There is a growing body iconography through the WWW with regard to
of evidence that auction sites are extensively used Elvis Presley (imagery), the Tellytubbies (trade-
for trading counterfeit DVDs, CDs and computer mark) and the pop-group Oasis (copyright) in Wall
software packages, as well as counterfeit clothing, (2004, 2007, p. 98) and more latterly the ferocity of
perfumes and other items (Enos 2000; MPAA the anti-piracy campaigns. Although not explored
2003, p. 3). in detail here, these and many more examples nev-
In many ways, these examples follow the mens ertheless demonstrate the gravity that owners of
rea (guilty mind—intent) and actus reus (guilty intellectual property rights attach to threats to their
act) of traditional piracy and the primary concern interests. They also illustrate the new dilemmas that
of victims, the intellectual property right holders, intellectual property right holders face with regard
is to restore any income lost by piracy that would to the paradox of circulation and restriction in an
otherwise have been enjoyed had the goods or environment of participatory consumption, which
services been purchased legitimately. However, requires them to carefully balance their need to
other new forms of counterfeiting are emerging restrict the unauthorised circulation of their infor-
solely within the confines of cyberspace that mational property to maintain income streams
require a further examination. Take, for example, whilst also allowing enough circulation of the
a situation where pictures of a famous pop star properties to allow the market to consume it as cul-
are appropriated from (usually official) Internet ture in the broadest sense and enabling it to reach
sites, scanned from physical sources or digitally new markets (Wall 2004, p. 35).
created by “morphing” different images together. Informational piracy differs from traditional
The pictures are then packaged in a glossy, pro- intellectual infringement because it blurs the
fessional format with some additional explana- boundaries between criminal and civil actions. It
tory text, and then sold through some form of is where owners’ intellectual property rights in
cyber-shopping mall or topic-specific social net- images, trademarks, copyrighted texts or general
working sites typically to young customers who character merchandising are threatened by theft
purchase them in good faith. To frustrate detec- or release into the public domain of the Internet.
tion, the site may be on a server in the USA and The threat is not just the loss of income streams,
but also of the “dilution” of a “property”’s value.
5
Quick Reference Sheet of Felony Charges to Consider
and Relevant Issues to Consider in Typical Intellectual
Property Cases <http://www.usdoj.gov/criminal/cyber- 6
Akdeniz describes the case of the Jet Report which was
crime/ipmanual/chart.htm> released into the public domain on ethical grounds.
88 D.S. Wall and M. Yar
Dilution is a term used in intellectual property ($466.3 million in losses), Philippines ($112.1
law to describe the reduction in value through million), Indonesia ($24.7 million) and Malaysia
unrestricted use, but is also a key part of the argu- ($23.5 million) (Havoscope 2010). On the other
ment used to justify legal sanctions against hand, a strong counter-argument is emerging that
infringers. The additional problem for intellec- questions the claims of the music industry. A
tual property right holders and for law is that the report by the Australian Institute of Criminology
Internet also facilitates new types of participatory argued that the music industry cannot “explain
consumption and development of informational how it arrives at its statistics for staggering losses
properties. Indeed the “wikinomics” of the digital through piracy” (Greene 2006). Evidence is also
economy, as it has been named (Tapscott and beginning to suggest that illicit MP3 downloads
Williams 2007), actively requires the release of are in fact helping to promote music culture and
some aspects of intellectual property into the also expand the capacity of the market. Not only
public domain so that participants can contribute can individual musicians now obtain immediate
to it. We return to this discussion later, but the exposure to a much broader section of the public
remainder of this section focuses upon specific without having to become contracted to record
areas of intellectual property piracy: music, video companies, but also MP3 has arguably broadly
and software and the theft of virtual artefacts. stimulated the market for old as well as new pop-
ular music. Even CD sales, it is alleged, are going
up and not down. Oberholzer-Gee and Strumpf
6.4 Music and Video Piracy questioned industry claims in their 2004 research
into the impact of downloads on physical CD
Music: If P2P software transformed information sales with the observation that “downloads have
sharing, then the invention of MP3 (music) and an effect on sales which is statistically indistin-
MP4 (video) file formats has, respectively, trans- guishable from zero” (Gibson 2005; Schwartz
formed the distribution of music and video. In the 2004; Potier 2004). Furthermore, this claim is
case of the former, as long as the appropriate P2P strengthened by the commercial success of
software is available, the music files can be down- recently introduced, and authorised, pay-to-use
loaded to a computer’s sound system, a portable MP3 sites, such as I-Tunes, e-music and others,
MP3 player or directly onto a CD Rom or Mini- and, of course, the popularity of new MP3 play-
disc. The recording of music in a computer-read- ing hardware devices, such as the I-pod.
able format was previously possible; however Additional evidence of this trend is found in
MP3 compression techniques reduced the files to empirical research conducted in 2005 by Leading
manageable or transferable sizes. Consequently, Question, which found that online file sharers
devices from the early Rio Diamond MP3 player actually buy more music, up to four and a half
through to the more recent generation of I-Pods times more in legal downloads (Leading Question
have been specifically designed to play MP3 files. 2005; Gibson 2005).
Opinions on the morality and legality of MP3 are The counterclaims described earlier illustrate
divided. On the one hand the record companies the dynamics of a power play in which the record-
and a few rock bands argue that the distribution ing industry’s highly publicised private legal
of unauthorised MP3s is causing the death of actions have been framed within a crime discourse
popular music by giving away hard-earned and to tame the MP3 download market. As soon as the
expensive properties and denying the authors the technology of MP3 began to gain popularity, legal
rewards that they deserve. For example, the actions were launched by the Recording Industry
International Intellectual Property Alliance claims Association of America (RIAA) and British
that in 2009, across 15 selected countries Phonographic Industry (BPI) on behalf of the
alone, music “piracy” accounted for US $1.5 bil- music industry. They invoked copyright laws and
lion in losses. Notably, a number of Asian coun- brought lawsuits against MP3 bulk uploaders.
tries featured in these statistics, including China Perhaps uniquely, few of the 15–30,000 or more
6 Intellectual Property Crime Online in Asia 89
cases brought against individuals have actually The failure to convict Johansen did not
gone to court, with the most being settled privately prevent the MPAA from continuing to protect its
(Vance 2005). Subsequent rogue (lawyer) actions, interests. From 2004 onwards, legal actions have
from 2009 onwards, in the form of speculative been brought against file sharers, particularly the
invoicing by ACS:Law and others, created so film indexing sites and television download sites
much negative publicity that the industry repre- (BBC 2005c). The latter action was significant
sentatives distanced themselves from the actions. because of the increased use of the Internet as the
Favouring instead the prosecution of commercial broadcasting medium for television and the blur-
uploaders (Wall 2011), though not before launch- ring of the boundaries between the two: “as
ing a publicity campaign that warned the public of TV-quality video online becomes a norm” (BBC
the damage caused to the music industry and soci- 2005a). Like the music downloading cases, the
ety in general by suggesting that the proceeds of MPAA’s actions were framed within an even
piracy supported organised crime. The impact of stronger crime discourse that was driven by anti-
both actions and publicity has, however, been to piracy advertisements showing at the cinema and
create an illusion of certainty of prosecution and also on DVDs and containing very vivid crime
to exercise a broad chilling effect upon illegal imagery alleging that piracy supported organised
downloading behaviour. crime and terrorism. This discourse is supported
by studies claiming that illicit P2P movie sharing
Video (Film and Television): MP4, or MPEG-4, is is on the rise, especially in regions such as the
a computer file compression format that, like Asia-Pacific, as access to high-speed broadband
MP3 with music, allows video, audio and other services becomes more common (Mookerji
information to be stored efficiently in one file. 2009). However, as with the cases against indi-
Within a P2P network MP4 files have transformed vidual music file sharers, most of the video
the dissemination of video, film and televisual download cases appear to have been settled pri-
materials. Newly released films can, for example, vately and the practice of speculative invoicing
be illicitly videoed in cinemas and then converted by entrepreneurial law firms has shifted from
into MP4 files, as can television programmes. music to adult films (Wall 2011). The actions
Similarly, DVDs can be ripped and all can be and crime discourse have, as with MP3, also cre-
sold, or traded through illegal “film portals” or ated a chilling effect on downloading behaviour
across P2P networks. DVD manufacturers ini- and evidence of a decreasing volume of down-
tially protected their products with a security loads is an indication of this trend, although it is
device; however this was broken by a descram- an area that requires further research. Initially,
bling program, DeCSS, written by Jon Lech these P2P-related actions against individual
Johansen (also known as “DVD Jon”) so that he infringers took place alongside legal actions
could watch his own DVDs on his Linux-powered brought against film Web sites that pose as legiti-
PC. He also posted details of his descrambler on mate film and music download services (BBC
the Internet that led to him being prosecuted 2005g). The current practice is to focus prosecu-
“largely on the behest of the Motion Picture tions upon the latter.
Association of America (MPAA)” (Leyden
2003). The case for the prosecution argued that
by sharing his DeCSS descrambler with others 6.5 Software Piracy
over the Internet, Johansen made it easier to pirate
DVDs and therefore acted illegally. The case was The final aspect of IP piracy that currently excites
thrown out by the Norwegian court on the grounds major concerns within cybercrime debates is the
that the DVD scrambling codes had prevented illegal distribution of software over the Internet.
Johansen from using his Linux PC to play back Illicit software was initially distributed through
the DVDs he’d bought (Cullen 2004: Public BBS bulletin boards and later across P2P file
prosecutor v Jon Lech Johansen 2003). sharing networks such as “Drink or Die” (USDOJ
90 D.S. Wall and M. Yar
2002; BBC 2005b). The distribution operations those that are illicit and those that are the
were either for profit or for trading (though not legitimate product of game designers. Perhaps
necessarily for profit), or to fulfil a broader ethic the most infamous “cheat” in recent years has
of helping the Internet community. The latter been the software called “Hot Coffee” which
function is often referred to as Warez, which is a unlocked secret sex scenes in Grand Theft Auto:
leetspeak (e.g. uses non-alphabetical numbers San Andreas (BBC 2005c; 2005d). Because of
that resemble syllables or sounds in words) deriv- these additional scenes, the rating of the game
ative of (soft)wares, but also tends to signify was subsequently changed to “Adult”, which
copyrighted software that has been illegally along with the additional publicity attracted by
offered for trade, but usually not for profit.7 The litigation helped to ensure that the game became
computer software industry claims large financial one of the most popular of all-time. Interestingly,
losses to such violations. Global losses were there is also a growing online market in the sale or
pinned at $51.4 billion for 2009 (BSA 2010, trade of other “cheat”-type activities outside the
p. 1). Eastern-Central Europe is deemed to have gaming world, such as assignments by students
the highest “piracy” rate, where 64% of all soft- (plagiarism) on auction sites and P2P networks.
ware is claimed to be an illegal copy; however, An interesting development in computer gam-
rates are also high for North America (21%) and ing has been the increased criminal exploitation
Western Europe (34%) (BSA 2010, p. 5). About of gaming artefacts that have strategic importance
60% of software in use in the Asia-Pacific region in online role play gaming, for example in Project
is allegedly pirated, with “emerging” markets Entropia.8 Players need to obtain artefacts that
such as China identified as especially problem- sustain their place in their games and help them
atic (BSA 2010, p. 3). Whilst the figures are high, progress through it. The artefacts are therefore
the methodologies used to calculate the losses highly desired because they represent not only
typically tend to rely upon estimations based high levels of ability and power but also the hours
upon the generalisation of limited statistics pro- of labour put into their construction. Because of
duced by a business victimisation survey. this, players are willing to pay large amounts of
real money for them. In 2004, a virtual island was
sold on eBay for $26,500 (£13,700) and in 2005
6.6 Stealing Virtual Artefacts a virtual space station went for $100,000
(£56,200) (BBC 2005f). The space station was to
An emerging problem is the unauthorised appro- be used as virtual nightclub to which users paid
priation of virtual artefacts that are the product of entry for access and whilst inside were exposed
intellectual labours and which have been created to real-time advertising as in a real nightclub.
in virtual environments. For many years, for Consequently, the high values of these arte-
example, the trade in “game cheats” has been a facts have generated a string of new criminal
long-standing practice. Cheats are virtual arte- opportunities. Already there have been examples
facts that enable players to map their way through of buyers being defrauded through e-auction
computer games more quickly or gain access to sales, artefacts being stolen, by hacking, from
hidden spaces within them. Some cheats exploit players’ accounts and even an “online mugging”
flaws in gaming programmes, while others are where a Japanese student was subsequently
strategically placed there by the games-makers in arrested for using automated bots in a “first per-
order to sustain players’ interest in the game. The son shooter” game players to make his avatar
problem with “cheats” is to be able to identify move faster than other players and shoot with
pinpoint accuracy, thus attacking fellow players
7
“Among warez users, there is often a distinction made
and stealing items (BBC 2005e). Police in Korea,
between “gamez” (games), “appz” (applications), “crackz”
(cracked applications) and “vidz” (movies).” Wikipedia
8
<http://en.wikipedia.org/wiki/Warez> Project-entropia.com
6 Intellectual Property Crime Online in Asia 91
Taiwan and also Japan, countries where computer violations, there tended to be few such actions—for
gaming is massively popular, have in recent years example, between 1970 and 1980 there were less
had to respond to requests from gamers to inves- than 20 prosecutions for copyright offences in the
tigate the theft of their “magic swords”—items UK (Sodipo 1997, p. 228). This may be attributed
obtained in computer gaming environments to a number of factors, including the relatively low
through intense labour.9 priority accorded to intellectual property crimes by
The challenges that these forms of offending overstretched and under-resourced criminal justice
pose for criminal justice systems are considerable, agencies; the public concern and political emphasis
not least because the victims can point to real eco- on more visibly “harmful” offences, such as “street
nomic harms done to them through the illegal crimes” and violent crime; difficulties in policing
usage, or sale, of their “virtual currency”. At the and intelligence gathering and the reluctance of
forefront is the question of how best to legally public prosecutors to involve themselves in a noto-
represent the loss in the victims’ interests. In their riously complex and specialised domain of law.
discussion of virtual property crimes, Lastowka However, recent years have seen moves to redress
and Hunter (2005, p. 300) argue that the analogy such copyright violations, bringing them increas-
of theft is inappropriate because it implies the ingly under the sway of criminal sanctions. This
destruction of existing value. They favour instead has taken three main forms.
the language of offences such as “counterfeiting”,
which takes into consideration the fact that the
“criminals” are actually creating illegitimate value 6.7.1 Increased Willingness to Use
(Lastowka and Hunter 2005, p. 315). Existing Criminal Sanctions
Against “Pirates”
6.7 Outlining the Debate over There has been increased willingness to use exist-
Intellectual Property Online ing criminal sanctions against “pirates”, encour-
aged both by greater political sensitivity to IP
The emergence of intellectual property violations rights and their economic importance and by
as forms of criminal behaviour must be placed in concerted application of pressure through lobby-
the context of wider legal, political, economic ing by the copyright industry. One key means in
and social processes, since it is in these spheres achieving this has been the formation of industry
of action that the definition of what counts as or organisations (such as the Alliance Against
constitutes crime ultimately emerges. Below we Counterfeiting and Piracy (AACP) and the
shall discuss relevant developments in the areas Federation Against Copyright Theft (FACT) in
of (1) intellectual property law; (2) policing and the UK) that conduct investigations and gather
(3) cultural rhetoric of anti-piracy discourse. information on “piracy” activities, and lay com-
One of the most significant legal developments plaints before public prosecuting authorities
in recent years has been the incremental criminali- (Sodipo 1997, p. 229; Bently and Sherman 2001,
sation of intellectual property offences. In the past, pp. 1030–31). Recent years have seen a number
violations (such as those related to copyright) have of high-profile piracy cases in which such proce-
been largely tackled through a range of civil reme- dures have led to criminal convictions carrying
dies available to copyright holders—such as injunc- substantial custodial sentences—for example, in
tions, “delivery up” or destruction of infringing 2002 a FACT investigation led to a 4-year prison
articles and payment of damages (Bently and sentence for the convicted “pirate” (Carugati
Sherman 2001, pp. 1008–23). Even where the law 2003). The overall number of criminal prosecu-
made provision for criminal prosecution of IP tions for copyright violations has also increased
massively—in 2000 alone, there were over 500
9
Interview with Korean Police Chiefs by David Wall, such cases in the area of music (CD) counterfeit-
October 2008. ing alone (Home Office 2002, p. 2).
92 D.S. Wall and M. Yar
(2002) and there are concerted efforts at the EU Similar IP education campaigns have been launched
level to strengthen EUROPOL’s powers of in Asia-Pacific countries including China, Singa-
enforcement in the area of intellectual property. pore, Malaysia and Hong Kong (ABAC 2007). All
such campaigns attempt to create a moral consen-
sus that unauthorised copying is a form of theft,
6.7.3 The Development and and as such as immoral as stealing someone else’s
Implementation of “Anti-piracy material possessions; moreover, they also target the
Education” Campaigns children’s parents in an attempt to warn them of the
possible legal repercussions if their children are
Recent “anti-piracy education” campaigns involv- caught engaging in piracy.
ing both copyright industries and public agencies All of the foregoing developments have served
have given particular focus to young people because to progressively shift intellectual property
of their apparently disproportionate involvement in offences into the space of criminal conduct.
illegal Internet downloading, copying and distribu- However, as Becker (1963) notes, it is by no
tion of copyrighted materials. Recent years have means given that those targeted with stigmatising
seen numerous “educational” programmes pro- labels of criminality and deviance will automati-
duced by umbrella organisations that represent cally accept such labels. Rather, they may resist
various sectors of the copyright industries—soft- such efforts, seeking to deflect the label by
ware, music and/or motion pictures. Such pro- defending their activities against those who seek
grammes typically provide a range of materials, to position them as “outsiders”. Such reactions
exercises and gaming activities that are intended may be considered as instances of what Sykes
for use in the classroom, thereby incorporating and Matza (1957) call “techniques of neutralisa-
anti-piracy into the school curriculum. Programmes tion”. These techniques serve as vocabularies of
typically target younger children between the ages justification by which the potential “deviants”
of 8 and 13. For example, there is the Friends of deflect negative labels, turning accusations of
Active Copyright Education (FA©E) initiative of moral delinquency back upon their accusers.
the Copyright Society of America—their child- Prime among these techniques are those of the
oriented program is called “Copyright Kids”. Also “denial of harm” (the assertion that no real social
notable is the Software and Information Industry damage is caused by the behaviour in question)
Association (SIAA)’s “Cybersmart! School and “denial of the deniers” (the assertion that
Program”. A third is the Business Software Alliance those who mount accusations are themselves cor-
(BSA)’s “Play It Cybersafe” program featuring the rupt, immoral or otherwise hypocritical).
cartoon character Garret the Ferret aka “The Moments of reaction-resistance have clearly
Copyright Crusader”. A fourth campaign is pro- emerged in response to moral entrepreneurs’
duced by the Government of Western Australia’s constructions of Internet piracy as a form of
Department of Education and Training, and is criminality. Music fans, committed to the free
called “Ippy’s Big Idea”. A fifth campaign is the circulation and appreciation of popular culture,
MPAA’s “Starving Artist” schools’ road show. This have established Web sites where such rhetorical
is a role-playing game designed for school chil- defences are mounted. For example, the activists
dren, which was taken “on tour” in 2003 in 36,000 of BOYCOTTRIAA.com stated in 2005 that:
classrooms across the USA. The game invites stu- Boycott-RIAA was founded because we love
dents “to come up with an idea for a record album, music. We cannot stand by silently while the
cover art, and lyrics” (Menta 2003). Having com- recording industry continues its decades-long effort
pleted the exercise, the students are told that their to lock up our culture and heritage by misrepre-
senting the facts to the public, to artists, the fans
album is already available for download from the and to our government. (BOYCOTTRIAA.com)
Internet, and are asked “how they felt when they real-
ized that their work was stolen and that they would Through such responses, acts of copying and
not get anything for their efforts” (Menta 2003). culture sharing are defended as principled stands
94 D.S. Wall and M. Yar
against corporate interests who are charged with 6.7.4 The Need to Rethink Intellectual
being the true “villains” in the unfolding con- Property Rights Management
frontation between producers and fans. However, and Reverse the
the lines of division within this battle to define Decriminalisation of IP Piracy
criminality are further complicated by the inde-
terminate role played by recording artists them- What the previous discussion indicates is a pro-
selves. On the one hand, artists have played a cess by which intellectual property piracy is
pivotal role in the entrepreneurship that has increasingly becoming framed by crime debates
sought to define Internet copying as harmful and without any clear evidence that this process will
socially unacceptable. For example, the famous solve the problem. This suggests that the per-
controversy over Napster’s online music file- ceived problem—the nature of the piracy—may
sharing service first hit the headlines as a result of actually require some critical revision. An emerg-
legal action taken by the band Metallica (Marshall ing and very real problem for intellectual prop-
2002, p. 9). Other prominent anti-Napster per- erty right holders and also for law and its related
formers included Madonna and Mick Jagger. In regulations is the very real shift that is now taking
contrast, other artists have made common cause place in the ways that intellectual properties are
with file-sharers, choosing instead to direct their being consumed in the information age. At the
criticisms against the recording companies rather level of computer programming, we have already
that the fans. In 2000, rock musician Courtney seen the “open source” movement make major
Love (singer with Hole and widow of rock icon contributions to the development of powerful
Kurt Cobain) launched what has been dubbed the operating systems such as Linux. The main prin-
“Love Manifesto”, a critical reflection on intel- ciple behind the open source movement is that
lectual property theft, artists and the recording core computer code is freely circulated so that
industry. Love began her “Manifesto” thus: individuals can perfect or develop it themselves
Today I want to talk about piracy and music. What and then recirculate for the benefit of others. In
is piracy? Piracy is the act of stealing an artist’s this way, the group effort makes the object of
work without any intention of paying for it. I’m not everyone’s labours stronger and also much more
talking about Napster-type software . . . I’m talking powerful than one individual could possibly man-
about major label recording contracts. (Love 2000)
age. At the broader level of the general consumer
She went on to claim that standard practice we are also witnessing significant new types of
within the recording industry deprives musicians participatory consumption (prosumption).
of copyrights, and the monies advanced to artists Sophisticated new software ranging from blog-
are largely recouped from them by the industry ging technology, through to image manipulators,
under “expenses” for recording and promotion. through to recording and publishing software
As a consequence, the musicians see little return have enabled consumers of information, music,
from their efforts and, she opined, “the band may text and images (moving and still) to create their
as well be working at a 7-11” (Love 2000). In own “mash ups”. In other words, software is
fact, it has been argued that piracy is in the enabling consumers to combine together the dif-
financial interests of most recording artists; most ferent parts of different intellectual properties
performers make their living from concert perfor- that they particularly enjoy to create something
mance, and this is best supported and promoted entirely new that they consume themselves and
by having their music circulated as widely as also share with others.
possible, including via copying. As musician In both of the examples illustrated above, the
Ignacio Escolar has put it: “Like all musicians, I consumers also become producers or “prosum-
know that 100,000 pirate fans coming to my ers”. Not only does this cause them to fall foul
shows are more profitable than 10,000 original of conventional IP laws, especially in the sec-
ones” (Escolar 2003, p. 15). ond example, but they are also increasingly
demanding recognition of, and rights to, their
6 Intellectual Property Crime Online in Asia 95
contributions to the intellectual properties that lem. The example of music and movie file shar-
they have enhanced. This “wikinomics” of the ing is a graphic illustration of where private
digital economy (Tapscott and Williams 2007) corporate interests compete with the public inter-
actively requires entirely new ways of thinking est and capture the crime agenda.
with regard to intellectual properties. Not least, The bulk of this chapter has focussed upon
the release of some aspects of intellectual prop- fraudulent behaviour with regard to intellectual
erty into the public domain so that participants property that has been driven by the desire for
can contribute to it. This process is counter-intu- economic or informational gain. This profile will
itive to conventional practices; however, gradually broaden as new opportunities for
Tapscott and Williams argue that allowing par- offending are created by the convergence of net-
ticipatory consumption has considerable value worked technologies of the home, work and lei-
to IP rights owners and, furthermore, it does not sure with those managing identity and location.
necessarily require core intellectual property to Importantly, this new world of convergence will
be released, only that which enables participa- be characterised more and more by information
tory consumption. Plus mechanisms could be brokering; thus “information capital” will become
created—depending upon the characteristics of increasingly more valuable. As a consequence,
the intellectual property in question—that would we shall probably see a further rise in the extent
allow prosumers to gain recognition and even and breadth of information theft. Future intellec-
income from their contributions. Importantly, tual property crime debates will therefore more
such a revision of conventional approaches to IP intensely focus increasingly upon the rights relat-
would also halt the increasing criminalisation ing to the protection of information and also the
process to the benefit of all. restoration of information and reputation once
compromised.
6.8 Conclusions
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“Opportunist” Insurance Fraud
Under Different Political Economies: 7
Taiwan (Asia) and Europe Compared
Susyan Jou
many countries people often deny “opportunist” criminologists have previously considered these
fraud as fraud or a crime. Again in Ericson and matters. Take Cressey (1953, 1986) for example;
Doyle’s (2004) expression, “softcore” insurance he pointed out (see Fig. 7.1) that there are three
fraud refers to policyholders exaggerating other- elements that can and will be found in all fraud
wise legitimate claims or when an individual cases, organized or opportunist: namely, opportu-
misreports previous or existing conditions to nity, perceived pressure, and rationalization. The
obtain a lower premium on his or her insurance triangle has also indeed been used as a model of
policy. In a survey by the Insurance Council of fraud prevention. Of the three elements, financial
Australia in 1993, 14% of those interviewed pressures are considered to be the most impor-
regarded padding a claim as acceptable. In the tant. Among others, greed, luxurious lifestyle,
2002 survey, the percentage had risen to 18%. debts, unexpected financial crisis (i.e., unemploy-
Other similar surveys done by the Association of ment, natural disaster), poor investment, and a
British Insurers in 2002 showed that 7% of lack of family/relative supporting system are the
respondents in the UK admitted to having made a most common. The relationship between financial
fraudulent insurance claim, and 48% in the UK pressure and opportunist fraud is well explained
did not rule out making a false claim in the future. by this model.
More interestingly, 40% of respondents believed For many ordinary people, “softcore” fraud is
that exaggerating a claim was acceptable or mar- “acceptable.” Many ordinary people who have
ginal behavior. 29% in the UK thought that mak- the experience of buying an insurance policy or
ing up a claim was acceptable or borderline making a claim share some of these views.
(CAIF 2007). In the USA, nearly one of four Rationalizations do help fraudsters conceal their
Americans say it is acceptable to defraud insurers true unlawful motivation and explain their actions
and some 24% say it is quite or somewhat accept- and feelings in a way that is less threatening to
able to bilk insurers (CAIF 2007). their sense of self. In terms of opportunities, a
Why is “opportunist” fraud so perceived? fraud arises when there is a lack of control to pre-
Why do people “neutralize” their behavior in this vent it, a lack of access to relevant information,
way ? Why do some countries take a more proac- and a lack of adequate audit trails or attitudes such
tive approach to such “crime” than others? Some as ignorance, apathy, incapability, and incapacity.
7 “Opportunist” Insurance Fraud Under Different Political Economies: Taiwan (Asia) and Europe Compared 101
In a 2001 US survey nearly 10% of respondents insured and the insurers together construct greater
said they would commit insurance fraud if they moral risk of opportunist fraud in the modern
knew they could get away with it (Coalition insurance industry.
Against Insurance Fraud 2008a, b). And about Furthermore, the triangle model has nothing
30% would not report insurance scams commit- to say about how differential reactions to oppor-
ted by someone they know. In other words, if tunist fraud are constructed under different politi-
antifraud measures are not taken or enforced seri- cal economies.
ously, opportunity knocks. Prima facie, the common rationales to “crack
Cressey’s fraud model, illustrated in Fig. 7.1, down” on opportunist insurance fraud are the
has been well received by criminologists and following:
practitioners; however, it arguably fails to capture • The perceived seriousness of opportunist fraud
how or why the political economy and the nature by the industry
and dynamics of the modern insurance industry • Costs to the industry
affect the form of the three elements and increase • Threat the “honest” insured
moral hazard of the insured and the moral risk of • Shame and fear
the insurance industry. Here we define moral haz- If all the rationales hold true, there should be
ard as the insured not entering the contract in little difference in industry and government
good faith or where he/she has an incentive to reaction to the problem across countries.
take unusual risks in a desperate attempt to make However, this is not the case. Ericson and Doyle
profit, and moral risk as market misconduct in the (2004) noticed that antifraud publicity cam-
structure and culture of the insurance industry. In paigns started in the last two decades in Canada,
reviewing the terminology “moral risk,” Ericson the USA, and the UK. Taiwan and China, on the
and colleagues consider and critique the tradi- other hand, only launched their campaigns in
tional definition of moral hazard (Ericson et al. the past 5–10 years (Jou and Hebenton 2007).
2000; Ericson and Doyle 2006). Arguably, neo- Until the mid-1990s, Finland and Sweden had
liberal societies (e.g., the USA or the UK) empha- not yet taken much formal action to tackle
size self-governance and individual responsibility opportunist insurance fraud (Niemi 1995).
to create greater risk, individual responsibility, Obviously, perception and reaction to insurance
and insecurity, and therefore, produce more fraud under differing political economies merit
financial pressures, rationalization, and opportu- further investigation.
nity for padding a claim. In social democratic This paper thus will investigate how political
society (e.g., Finland or Sweden), the social wel- economy and the changing nature of the modern
fare tradition and the perception of social insur- insurance industry reshape Cressey’s original tri-
ance can reduce these financial pressures and angle model. We also analyze the “what and
rationalization to commit a fraud. The financial why” of antifraud prevention measures and how
pressures motivate people to commit fraud and at they are differently understood in three selected
the same time trigger a more proactive reaction countries (selected as an ideal-type analysis rep-
from insurance companies or the State. And the resenting neo-liberalist, social democratic, and
changing nature of the insurance industry from a Confucian political economic regimes).
mutual trust system within a homogeneous group
to a more investment-oriented and anonymous
system allows both policy holders and insurers to 7.2 Political Economy and
rationalize their frauds and creates more opportu- Opportunist Insurance Fraud
nity to commit it. For the insured and the insur-
ers, the insurance business has changed into a Neo-liberalism refers to the late twentieth cen-
more investment-oriented and anonymous tury revival of the nineteenth century approach to
arrangement, in contrast to the previously envis- free-market capital known as economic liberal-
aged charitable and altruistic one. Inevitably, the ism. The general ethos is individualism rather
102 S. Jou
than collectivism (Cavadino and Dignan 2006, p. exclusive. They do not fully cover all risks
440). Scholars usually agree that the neoliberal throughout a person’s life span. They also exclude
model has some basic common characteristics: the individuals who have property, reasonable
there is to be a minimal state; market fundamen- income, or a family and especially a well-to-do
talism is stressed; emphasis is placed not only on family. Because of collective responsibility, the
risk management but also on risk taking; indi- State and the family do not encourage risks and
vidual responsibility is underscored. Each indi- risk-taking. Risk management strategies to them
vidual is to be his or her own personal security tend to be “having some personal savings in the
market and other consuming interests (Ericson bank,” “having more filial and loyal children,”
et al. 2000). Concepts such as risk, risk-taking, and “extending more ties of friendship as safety
individualism, insecurity, and uncertainty com- nets.” If a person has none of the above, the State
monly dominate the neo-liberalism literatures will provide them as basic social services. Thus if
(Lash and Urry 1987; Esping-Andersen 1990; a Chinese or Taiwanese citizen turns to buy pri-
Beck 1992). On the other hand, what are the vate insurance its meaning culturally would be
assumptions underlying the social democratic better understood as akin to “an investment to
model of society? Le Grand (1997) argues that make more money” or “to benefit their family
this type of society assumes that the state and its members” than a self risk management tactic.
agents are both competent and benevolent. That In sum, we can characterize individual respon-
is, whoever operated the state can be trusted to sibility, self-governance, risk management, as
work primarily in the public interest. Politicians, well as risk taking as central values for neoliberal
civil servants and bureaucrats, and managers are society whereas collectivism, altruism, trust, and
supposed accurately to define social and individ- equality characterize social democratic society.
ual needs. In short, the society based on high Collectivism, family responsibility, and coopera-
taxation and social security involves a belief in tive social security net, on the other hand, play
people’s sense of altruism or at least of an adher- important roles in Confucian society and culture
ence to collective solidarity. (for a powerful analysis of cultural collectivism/
In a society under the influence of individualism and its consequences see Hofstede
Confucianism, mainly in East Asia, great empha- 2001; Hofstede and Bond 1988) (see Table 7.1).
sis is placed on collectivism, family responsibil- How do these different political economies (and
ity, and a cooperative social security net. The cultures) help determine reactions to opportunist
State and the family are seen as primary sources insurance fraud? One way of understanding these
for dealing with risks and losses. For example, in relationships is to consider how the political
Chinese culture, people still believe that the best economy and culture interact to produce moral
insurance one can buy is to have as many sons as hazard and moral risk.
one can. Note that it’s “sons” not “daughters,”
because married daughters would not be consid-
ered as part of the family and therefore are not 7.3 More Risk Leads to Greater
responsible for their parents’ welfare or illness. Moral Hazard
Gradually, and in the twenty-first century, the
cultural values of “filial piety and Guanxi (friend- Both Giddens (1995) and Beck (1992) argue that
ship or connections)” in countries like Taiwan, the notion of risk is accompanied by the rise of
Singapore, or China have adapted to the marketi- insurance. In modern society, not only are there
zation of society, interlocking with modern risks like natural disasters as in ancient times but
financial systems (Tang 2005). The State both also risks from human forces, or what Giddens
finances and provides the supply of basic social might call “manufactured uncertainty or manu-
services such as education, health care, social factured risks” (Giddens 1995) which operate
care, and full pension plan (for some selected significantly under human agency (i.e., environ-
groups). However, the services are limited and mental pollution, traffic accidents). The insurance
7 “Opportunist” Insurance Fraud Under Different Political Economies: Taiwan (Asia) and Europe Compared 103
business is all about making people plan and dis- insurance would not bother to question their esti-
cuss their risks in monetary terms as well as to mates either. For both parties, padding an auto-
help them reduce financial pressures resulting mobile bodily injury claim is what they “deserve”
from possible risks and losses. from the insurance company.
Moreover, as risk increasingly becomes an Therefore, arguably in a neoliberal society,
integral part of the free market economic system, more risks lead to more pressures which expand
certain risk taking and calculations assume new the size of the insurance market. The booming
respectability. Risk taking in neoliberal society insurance market however brings an additional
especially has a positive meaning now: the chance quantum of moral hazard in terms of encouraging
of hitting a big win, of getting more on the back people to take more risks and helping them ratio-
side than one invests on the front side. Wall Street nalize the claim padding behavior.
(New York) and the City of London are full of
winners in this system. To deal with highly
encouraged risk-taking attitudes and behaviors, 7.4 More Individualism Leads
rational calculation of possible loss and getting to Greater Moral Hazard
insurance cover is viewed as a purely economic
decision. Paying premiums act as an appropriate After World War II, neo-liberalism promoted the
incentive and are calculated to diminish financial idea of strictly individualistic conceptions of self-
losses. However, moral hazard increases drasti- help, replacing more efficient cooperative risk-
cally with the insured risk takers. The insurance bearing techniques. Insurance emerges as the
policy will arguably encourage them to take more most efficient secular risk-bearing system to han-
risks resulting in actual dangers that the insurer dle the economic hazards. Government tries to
has to pay for. And padding a claim is also an shed responsibilities and transfer them to the pri-
economic calculation of the insured to get a “fair vate sector, i.e., the insurance. Such an approach
share back.” A field experiment in Boston (USA) to insurance is seen as positive and quickly
undertaken by Tracy and Fox (1989) found that accepted. In an individualist society, social net-
auto body repair estimates were significantly work security is perceived less desirable than
higher with insurance coverage than without, market insurance. Thus, individualism not only
regardless of the type of car, extent of damage, off-loads government responsibility but also dis-
sex of driver, and location of shop. For car own- courages the cooperative social security net. That
ers with insurance, they did not want to spend is to say, family, relatives, or friends are no longer
more time to acquire a second opinion. For auto- part of the risk management system. This would
mobile garages, they knew their clients with take away the individual’s understanding of
104 S. Jou
collective morality, the value of others apart from insurance industry is able to sell more unnecessary
money and losses, inevitably resulting in greater policies to the insured. Over-insurance provides
moral hazards in insurance relationships (Ericson people with opportunities to exploit. Opportunity
et al. 2000). Rationalization of opportunist fraud arises in the case of over-insurance, when the
occurs when society loses its collective morality amount insured is greater than the actual value of
and other values, apart from money values. This the property insured. This allows the insured to
is also evident when the government and the make profits by acting less prudently—either in
industry start their antifraud campaigns and seek relation to themselves or in relation to their prop-
to introduce more regulations to prevent oppor- erty, or to destroying their property or purposely
tunist fraud. staying in hospital longer because the payment
they receive from their insurers is of greater value
than the property or time they lost and the pain
7.5 Insecurity Leads to Greater they have been through.
Moral Hazard
As we know, the social democratic model prom- 7.6 The Changing Nature of Modern
ises security whereas neoliberal society promises Insurance and Opportunist
insecurity. Which one of the political economies Insurance Fraud
would result in greater moral hazard? One argu-
ment is that social democratic society creates a Aside from external influences, the internal work-
culture of dependency (Giddens 1998). Instead of ing environment of the insurance industry has
the desirable emphasis on risk-taking and enter- also independently evolved in modern society.
prise, there is risk minimization, avoidance, and Today’s insurance is far more complex than in
aversion that create human and institutional iner- earlier times. Even though the fundamental idea of
tia (Ericson et al. 2000). Because the State offers risk management, the equitable transfer of the risk
generous benefits, citizens are expected to pay of a loss, from one entity to another, in exchange
high taxes as their “premium,” and it makes it for a premium remains the same, the changing
easy for ordinary people to morally rationalize a nature of insurance business leads to a rise of what
fraudulent claim to social insurance benefits. Ericson and Doyle (2006) called “moral risk”
What about moral hazard for private insurance? which is institutionalized in the structure and cul-
Arguably, the moral hazard for private insurance ture of the insurance industry. Arguably, that moral
would eventually be minimized where the culture risk is situated within specific aspects of the “new”
of social democratic society discourages the con- insurance, namely, “scientific” underwriting pro-
sumption of private insurance and when bureau- cess, responsibilization of the individual consumer,
cratic inefficiencies make it easy to commit and the vision of insurance as a high-profit/invest-
benefit fraud. ment-oriented enterprise.
In distinction to the welfare state, the sense of
insecurity in neoliberal countries appears for
opportunist fraudsters to override any notion of the 7.7 The “Scientific” Development
prospect of getting caught. Economic insecurity of Underwriting and
brings more perceived risk and financial pressure Responsibilization of the
which encourage ordinary people to participate in Individual Leads to Greater
dishonest forms of economic behavior (Gooby Moral Risk
et al. 1999). The low cost and the preserved rewards
associated with means-tested schemes make pad- In traditional insurance, the character of a large
ding a claim highly incentive. On the other hand, number of homogeneous exposure units allows
the image of insecurity and uncertainty is so well insurers to benefit from the so-called law of large
exercised and successfully constructed that the numbers. However, today’s insurance practices
7 “Opportunist” Insurance Fraud Under Different Political Economies: Taiwan (Asia) and Europe Compared 105
are, on the contrary, an attempt to pool all popu- tionship in insurance has long since changed in
lations based on a “scientific” selection of risk modern society. The transformation from mutual
factors calculated by experts. assistance to the marketplace signals a drastic
Glenn describes underwriting as a “ticking departure from a system of a gift relationship to
boxes” process (Glenn 2003, p. 133). Underwriters an economic type of exchange. While status pre-
tick off boxes on an application and match them scribed reciprocal types of exchange, market
to a set of clearly defined criteria. Glenn argues relationships are regulated by contract and not
that it is a more subjective than objective judg- obligation.
ment when underwriting for insurance. But the Today’s insurance goes beyond safeguard
fact of the matter is that with the competition in and mutual help—instead presenting as a
the market as well as the legal responsibilization finance and investment industry. The invention
of the individual consumer, more and more of the “whole” life insurance product is a good
underwriters don’t even bother to pay a home example.
visit or check whether the object being insured
actually exists before they write up a policy (Jou
and Hebenton 2007; Niemi 1995). 7.9 Three Cases: The UK, Finland,
Since insurance shifts risk from one party to and Taiwan
another, it is essential that there must be utmost
good faith and mutual confidence between the Our analysis has demonstrated the role of politi-
insured and the insurer. In a contract of insurance cal economy in relation to moral hazard and how
the insured knows more about the subject matter of moral risk is embedded within the changing
the contract than the insurer. Consequently, he/she nature of the modern industry itself. We now turn
is duty bound to disclose accurately all material to consider three countries, the UK, Finland, and
facts and nothing should be withheld or concealed. Taiwan, to further illustrate the relationship
Any fact is material, which goes to the root of the between political economic regimes and oppor-
contract of insurance and has a bearing on the risk tunist insurance fraud. In our ideal-type compari-
involved. If the underwriter knows little about the son, the UK is selected as representative of an
insured or purposely leaves the consumer an oppor- advanced free market society with limited and
tunity to mislead or conceal relevant information to fewer welfare services, Taiwan is a market soci-
sell more insurance, moral risk arises. ety interlinked with some degree of state-pro-
Objectively “ticking off” the boxes creates a vided provision and informal risk management
more heterogeneous pool, a pool with lots of culture, and Finland conversely provides a gener-
anonymous “outsiders.” Responsibilizing the ous welfare regime with strong protective state
individual consumer produces further moral risk. provision (the heuristic value of typologies is
The “scientific” underwriting process, including now widely recognized for comparative research
pooling heterogeneously, along with the respon- in the social sciences—see Esping-Andersen
sibilization of the individual consumer destroys 1990; and more recently the work of Hall and
the trust system, consequently making it easier Soskice 2001). The ideal-type comparison is
for insureds to rationalize their fraud. often linked to the approach and work of Max
Weber; it is common in economic literature. An
ideal type is neither an average type nor a simple
7.8 An Enterprise Focused on Profit description of the most commonly found features
and Investment Enhances Moral of real-world phenomena. Thus one does not
Risk construct an ideal type of “bureaucracy” by
finding the features that are shared by real
How does an insurance company make large “bureaucracies.” Nor is ideal used normatively in
profits out of “insuring people’s life or property the sense of a desirable objective. In essence, it is
loss?” It is clear that the nature of the gift rela- a heuristic device, or a method of investigation.
106 S. Jou
and resources to cope with the offences and to obviously fit the definition of “rationalization” in
deal with their “loss.” After all, insurance compa- the fraud triangle model. The motivation of per-
nies have the ultimate power to decide if a policy sonal financial gain certainly indicates the
is granted or a claim can be compensated. In financial pressure on these employees. These are
addition, it is believed that the insurance compa- all “predicted” by the triangle model.
nies can pass the cost of fraudulent claims to Another notable study argues that British con-
other policyholders by simply increasing premi- sumers develop a sense of anomie from the unfair
ums. Clarke (1989) suggests that fraud appears as and unethical business practices in the neoliberal
an embarrassment to the insurance industry, marketplace and this allows them to justify their
because it is a symbol of violation of the values “everyday crime” such as padding a claim
of service, fair dealing, and utmost good faith on (Karstedt and Farrall 2006). According to
which it is historically proud to act. Karstedt and Farrall, the major reasons given for
However, due to the discovery of the large hid- committing these everyday crimes are (1) the fear
den costs of insurance fraud by the insurance of becoming a victim of crime and shady prac-
industry, some countries even by the mid-1960s tices in the marketplace; (2) distrust of market
were advocating early recognition of the problem agents and their practices; and (3) legal cyni-
and the need for collective reaction to it. Of those cism—the extent to which people feel disengaged
countries, the USA is the global pioneer in terms from legal norms. These three elements of ano-
of seeking to raise public awareness and seeking mie in the market economy affect people’s moti-
prevention of insurance fraud (Clarke 1990). vation to cheat on insurance claims.
However, arguably public perception is quite Yet, arguably, the three elements proposed by
different when compared with the industry itself. Karstedt and Farrall do not really take our under-
In a recent ABI publication, it emphasizes that standing beyond the level of discussion of ratio-
“opportunist insurance fraud is dishonest, ulti- nalization in the fraud triangle model.
mately costs everyone all money. And there is a Nevertheless, their study is valuable in emphasiz-
high chance of being caught” (ABI 2006, p. 3). ing “the crimes of everyday life reflect the
Such aggressive publicity appears to sit uneasily changes of the economy at the late twentieth cen-
alongside the views of the public-consumer. In tury. The result of which has been a ‘cornucopia
qualitative research done by ABI in 2005, a panel of new criminal opportunities’” (Karstedt and
of employees of 1,100 companies were inter- Farrall 2006, p. 1012). A free market is always
viewed by the researcher about a series of sce- seen to produce an abundance of new legal/illegal
narios and asked in which circumstances people opportunities. The rise of unfair and unethical
were most likely to commit fraud. The research practices by business and dishonest and unlawful
found that 36% of the panel stated that they would behavior by consumers destroys any preexisting
be tempted to commit fraud to avoid disciplinary bases of traditional morality, especially in regard
action, 33% would do it for personal financial to fairness and justice. On the basis of the results
gain, and 27% for work-dissatisfaction or revenge of these kinds of studies, one can see that public
on their employers (Association of British perception of “opportunist” insurance fraud in
Insurers 2005). Avoidance and dissatisfaction the UK may sit uneasily alongside that of the
108 S. Jou
industry. The public justifies/rationalizes their tion, court, or other State agencies. Where such
misbehavior as “hitting back.” The industry cooperation was sought, the view was that the
attempts to label such “opportunist” fraud as insurance industry ought to “buy in” the services
being “shameful.” Nonetheless, the perceptions of police and other state agencies. Turning to the
of the public and the industry all are shaped by a situation in Asia, Kim and Kwon in their recent
hidden but common denominator—the new neo- work on Korea point out that “neither the govern-
liberal market economy embraced by the UK ment nor the insurance industry paid close atten-
since the early 1980s. tion to the issue of insurance fraud until the Asian
Only in the mid-1990s did the Finnish insur- economic crisis” (Kim and Kwon 2006). The
ance industry begin to pay more attention to Asian economic crisis in 1997 caused a near-per-
analyzing the characteristics of potential policy- pendicular depreciation of the currency, eco-
holders and the possibilities of preventing fraud nomic uncertainty, and social insecurity. During
by reducing opportunities for fraudulent activity this crisis, some people throughout Asia were
(Niemi 1995). Violation of social norms is not a under severe financial pressures and inflicted
major concern for opportunist fraud among the self-injury or caused damage or staged fires to
Finnish public, especially the younger generation. their factories, companies, or property in an
A survey done by the University of Turku in 2003 attempt to gain compensation from insurance
showed that the public’s views on insurance fraud (Kim and Kwon 2006, pp. 136–137). If this is the
have not changed much from 1996. The older the case in Korea as Kim and Kwon described, it is
person, the more serious they considered the fraud important to note that Taiwan shared a similar
to be (Morse and Skajaa 2004, p. 148). The policy experience in the late 1990s. News media indi-
of insurance companies is guided by economic cated a rise of public awareness, and alerted the
reality. Niemi admits that prevention and control government as well as the insurance industry.
of insurance fraud in Finland are not motivated by Furthermore, in the late 1990s, the Taiwanese
any considerations of the public interest. For the Government embraced a fully open and transpar-
State, one goal in making insurance fraud a crimi- ent international financial market, and increasing
nal offence is the maintenance of general respect incidents of insurance fraud then come along
for the law. The insurance industry has to solve with the expansion in market business in insur-
insurance fraud independently of the State because ance. The insurance division which had been
such frauds are widely regarded as “private busi- established in 1991 then merged with the banking
ness.” This perspective can be seen in terms of the and investment industry regulators into the
published “good practice guidelines for insurance Financial Supervision Commission in 2004. In
investigation” regulated by the Federation of the same year, the life and nonlife insurance
Finnish Financial Services (FFFS 2006). The reg- industry associations funded the Insurance Anti-
ulations specify that “fraud prevention is part of Fraud Institute (IAFI) to respond to a perceived
insurers’ social responsibility” (FFFS 2006). That increase in insurance fraud.
is to say that for the State and the people in
Finland, insurers hold primary responsibility for
dealing with insurance fraud. 7.12 Reactions to Opportunist
Finland, as a welfare state, has had low Insurance Fraud in Three
confidence in “privatization” since 1990s. For the Countries
public in Finland, there exists the question of
why the insurance industry had not taken a more 7.12.1 The UK
proactive approach to the prevention of insurance
fraud. Contrary to Taiwan’s or the UK’s case, the Of all the areas of insurance fraud, arson (fire)
Finnish preferred that the insurance industry took seems to have offered the most legitimate oppor-
private investigatory action, instead of calling for tunity to attract attention from the UK
greater cooperation or help from police, prosecu- Government. The Fire Loss Bureau was
7 “Opportunist” Insurance Fraud Under Different Political Economies: Taiwan (Asia) and Europe Compared 109
established as early as 1975 funded by a number Review Team overseen by the Financial Services
of insurance companies to control the losses from Authority reporting on strategic action. The Fraud
fraudulent arson (Clarke 1989). The involvement Act specifically defines fraud as being committed
of the public sector, namely, police, Home Office, when a person “makes a false representation,”
and forensic services, has greatly assisted the “fails to disclose information to another person
prevention of opportunist fraud. which he/she is under a legal duty to disclose,” or
On the other hand, insurance companies rec- abuses a position in which he/she is “expected to
ognized that the industry suffered from nonpro- safeguard, or not to act against, the financial
fessional fraudsters and from changes in attitude interests of another person.” The penalties for
on the part of the insured population, who increas- fraud under the Act are imprisonment up to 10
ingly regard insurance as fair game (Clarke 1990, years, a fine, or both (Ormerod 2007).
p. 18). Learning from American experience
(because Americans identified the problem at a
relatively early stage and was quick to act) (Morse 7.12.2 Finland
and Skajaa 2004), the British started to take pub-
lic initiatives on insurance fraud in the mid-1980s. In Finland, insurance supervision is regulated by
In 1987, a Motor Insurance Anti-Fraud and Theft the 1999 Act on the Insurance Supervision
Register was established by all motor insurers to Authority, and special enactments regarding the
collate losses (Cullis 1987). The data collection insurance industry. The task of the Finnish
and analysis have proved that the information Insurance Supervisory Authority is “to promote
sharing was useful to discourage attempts to the financial stability of insurance and pension
make false claims. Since then, the innovation and companies as well as other operators in the insur-
implementation of data mining techniques have ance industry, while maintaining confidence in
become a powerful measure for insurance com- the insurance business” (FIN-ISA 2007). Insurers
panies to screen high-risk underwriting and to are expected to reduce opportunities for the poli-
identify suspicious claims. The creation in 2006 cyholders to commit fraud against them and to
of an Insurance Fraud Bureau to improve the detect and investigate any detected fraud and,
capability of member insurers to prevent, detect, where needed, report to the authorities. The gov-
and investigate organized insurance fraud was a ernment plays a supervision role to the industry
major development financed by the insurance rather than becoming involved in preventing and
sector itself (Jou and Hebenton 2007). controlling insurance fraud.
Other reactions against fraud more generally Before 2007, the main organization responsi-
in the UK include the emergence of a new profes- ble for antifraud campaign work was the
sion: the fraud investigator or counter-fraud spe- Federation of Finnish Insurance Companies
cialist (Button et al. 2007). The background to (FFIC). The FFIC was a joint body for insurance
this profession dates from 1979 and now totals companies operating in Finland, representing
more than 8,000 people across the public sector their interests to government authorities, other
and a large number by private enterprises (for trade organizations, and the public. It worked to
example, Button et al. estimate that six largest promote insurance business, adequate risk man-
banks alone have 2,500 in-house investigators). agement, and effective loss prevention, setting
The legal response to fraud prevention is evi- out from the idea of insurance. At the beginning
denced as part of the Financial Service Act of of 2007, as a result of a merger between the
1986. A year later, the Serious Fraud Office was Finnish Bankers’ Association, the FFIC, and the
set up to improve the investigation and prosecu- Employers’ Association of Finnish Financial
tion of serious and complex fraud. After a long Institutions, the Federation of Finnish Financial
process of consultation and review, a specific Services was set to start operations. The new
Fraud Act (2006) was brought before Parliament, FFFS aims “to secure the industry a benign oper-
establishing a high-level government Fraud ating environment, well-functioning financial
110 S. Jou
markets and effective payments transmission sys- between the insurer, insurance development
tems and to support new opportunities offered to association, prosecutor’s office, police, fire depart-
members by Public-Private Partnership arrange- ment, and other sector professionals (see Jou and
ments”. It indeed acts as a liaison point for Hebenton 2007). The Bureau’s main tasks include
information between insurers and with external acting as a liaison in multi-governmental agen-
bodies. cies meetings with the industry; establishing the
Most insurance companies establish their nonlife insurance compulsory reporting and
own fraud units or insurance investigators who information enquiry systems across insurers in
specialize in crime investigation. In addition to 2004; promoting share insurers’ online informa-
setting up special investigation units and gov- tion with prosecutors for cases involving suspi-
erning under the ISA and FFFS regulations, cious claimants and failure to disclose relevant
Finnish insurers have access to two antifraud information; regulating the insurance companies
databases, a claims database and another set up to set up an investigation unit or hotline for
for fraudulent claims (Morse and Skajaa 2004, claims; raising public awareness about insurance
p. 148). The joint claims register is set up with and the nature of insurance fraud; and promoting
an aim to prevent customers from getting com- new measures that allow for insurance fraud cases
pensation from several insurers for the same to be heard in specialized courts (such as the exis-
loss. Over time, the claims register also reveals tence of economic crime specialized court).
persons that sustain losses of a certain kind Compared to many other western countries, it is
exceptionally often. As customers are told about clear that most preventive actions to control
the existence of a claims register when they file insurance fraud are initiated and promoted by the
a claim, or even earlier, the role of the claims State rather than the private sector.
register as a fraud deterrent is significant. The
second one, the fraudulent claims database, con-
tains details of customers who have committed 7.13 Comparative Analysis
insurance fraud. Recently, extensive work in
insurance fraud investigation has resulted in For the UK and Taiwan, broadly similar responses
new prevention tools devised in cooperation can be seen, though over different time periods,
with other European insurers. Prevention of life namely, (1) the establishment of an anti-insur-
and pension insurance fraud operates through a ance fraud organization to coordinate across
network built between insurers and security insurers; (2) creation of an appropriate database
authorities. across insurers and implementation of new data
mining or intelligent analysis technique/soft-
ware; (3) publicity on insurance fraud both orga-
7.12.3 Taiwan nized and opportunist types as a serious crime;
(4) prosecutions and convictions with tougher
Turning to Taiwan, in 2003 the Financial penalties; (5) closer work with police and insur-
Supervisory Committee reformed and enhanced ance industry; and (6) establishment of in-house
the capacity of the main government agency, the fraud investigation units. At present, Finland is
Taiwan Insurance Bureau, to supervise the insur- seemingly reluctant to take a more proactive role
ance industry [Act Governing the Establishment in fighting opportunist insurance fraud on a com-
of the Financial Supervisory Commission, prehensive scale.
Executive Yuan (Promulgated on July 23, 2003)]. The UK began preventive actions in the 1980s
As part of the reform, the Bureau was tasked with and got even more proactive in the last decade,
developing policy on the control of insurance while Taiwan began its efforts in 2003. In Finland,
fraud. In pursuit of its aims, the Bureau estab- selected measures like sharing database information
lished the IAFI in 2004 to coordinate relations and forming in-house fraud investigation units
7 “Opportunist” Insurance Fraud Under Different Political Economies: Taiwan (Asia) and Europe Compared 111
Unfortunately, neither tell us much about the In the case of Taiwan, opportunist fraud is per-
making of opportunist insurance fraud in a ceived as a threat to national security, social secu-
comparative sense and neither explain why rity, and personal financial desperation. The
advanced preventive measures taken by for blame is directed both to its political opponent,
example the USA, the UK, or Australia are China, and to decline in family ties and low self-
unable to stop opportunist fraud from being control among individuals. By doing so, the
perceived as “acceptable” by large segments of government is able to engage itself in prevention
the general public. As we have demonstrated in and control policy and of course downgrades its
this paper, antifraud activities are best regarded responsibility and accountability to deal with the
as the classic example of “social reaction”—the macro-level problems of economic crisis in the
more activity one devotes to investigating, the past 10 years. The Finnish public blames recent
more one “uncovers” the extent of the problem. changes in terms related to wider welfare privati-
Analyzing perception and action on opportunist zation. Thus, in Finland, it is undoubtedly the
insurance fraud in the USA in the 1970s, the insurance company’s responsibility to use their
UK in the 1980s, and Taiwan and Finland in the own resources and initiate preventive and control
turn of twenty-first century demonstrates a good actions. The government plays a rather neutral
comparative case-study of the process of “social role between the insurer and the insured.
reaction.” The earlier the reaction, the more Our findings sit alongside the work of Baker
serious opportunist fraud is discovered. and Simon (2002), Ericson et al. (2000), and
Moreover, the earlier the country opens up to a Ericson (2007). Manufactured risk, risk-taking,
neoliberal free market economy, the harsher the individualism, and insecurity in the neoliberal
moral hazard and moral risk it encounters. It is market society help create the atmosphere of
no coincidence that the rise of opportunist “anxiety” in everyday life. More signs of fear and
insurance fraud has been concurrent with more security products are made available—
macro-level change at the level of the political especially when government and family are no
economy in each country. This study’s analysis longer seen as “capable”—it is now the responsi-
suggests that the political economy helps shape bility of individuals. Market society is saturated
popular sentiment to insurance fraud. with fears—fear of risk, fear of not taking risk,
In our comparison, the neoliberal UK has one fear of the withdrawal of the State, fear of the
of the largest insurance markets in the world, and breakdown of family support, and fear of insecu-
faces “serious problems” of opportunist insur- rity. The huge growth in the market for insurance
ance fraud. Taiwan, a society with arguably a is undeniably facilitated by the summation of
mixture of market and Confucianism ideology, knowledge of “fears.” Arguably, people with
also holds one of the largest insurance sectors, greater anxieties “consume” more un/necessary
and suffers to a broadly similar extent on fraud. insurance policies or are over-insured. Scientific
The classical social democratic country, Finland, underwriting and the investment vision of mod-
possesses a smaller insurance market and suffers ern insurance, on the other hand, also act to trig-
less from opportunist fraud. The public discourse ger moral risks, that is, to endorse the imaginary
of and social reaction to opportunist insurance risks and to promote/sell more unnecessary insur-
fraud further demonstrate how the politics of ance policies to insecure people. The chance to
economy interplays with the fundamental ques- profit from losses incites the unscrupulous to
tion of “who to blame” in three countries. In the fraudulent behavior. When deceptive insurance
UK, there is a perception gap between the insurer sales become institutionalized, it certainly makes
and the insured on “who to blame.” As addressed the insurance business a troublesome practice in
earlier, the insurer blames the dishonest and terms of generating more opportunist fraud
greedy policyholder and the public blame it on (Ericson and Doyle 2006).
unethical and rotten business practice. The gov- Julian Le Grand, the British social policy
ernment obviously takes the insurer’s side and theorist, has an interesting metaphor, where in
initiates a more proactive reaction to prevention. the context of the interplay of contemporary
7 “Opportunist” Insurance Fraud Under Different Political Economies: Taiwan (Asia) and Europe Compared 113
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Drug Abuse and Drug Trafficking
in Asia 8
Huan Gao
compared to 2007. While both global opium and Myanmar, the major producer country in the
heroin production fell since 2007, a significant Golden Triangle, opium production regions are
increase in opium production (from 4,346 to occupied by ethnic opposition groups that have a
7,754 mt) in 2009 was evident (UNODC 2010a). self-administrated autonomy outside government
In Afghanistan, the world’s leading opium pro- control (Kramer et al. 2009). Another similarity
ducer, the total opium poppy cultivation in 2010 shared by Afghanistan and Myanmar is poorly
largely remained the same as the previous year’s developed local economies. According to the
at 123,000 ha, representing two-thirds of the UNDP 2010 report, the Human Development
opium cultivation in the world. However, yield Index (HDI) for both Afghanistan and Myanmar
fell from 56.1 to 29.2 kg/ha due to a plant disease was in the low development category with a gross
(UNODC 2010b).6 In Myanmar, the second- national income (GNI) per capita at $1,419 and
largest opium production country, the opium $1,591, respectively. Opium production areas in
poppy cultivation began to surge in 2006 (from these countries are found in extremely poor areas.
21,600 ha in 2006 to 38,100 in 2010) (UNODC A survey conducted in Afghanistan indicated that
2010d). Lao PDR is still ranked as the world’s farmers were motivated to cultivate opium poppies
third-largest producer of opium; however, its mostly for economic reasons (47%) (UNODC
cultivation has significantly decreased in recent 2010b).
years (Reid et al. 2006). Regardless of increasing heroin use in Asia in
Although Afghanistan has cultivated opium recent years, western Europe and the Russian
for centuries, opiate production began to surge Federation are still the two largest heroin con-
in the 1990s. The Soviet Union’s withdrawal in sumer markets worldwide (UNDOC 2010a). For
1989 and the country’s breakup in early 1991 this reason, drug trafficking routes have been
are viewed as two major events that boosted developed with a purpose of connecting the
Afghanistan’s opium production (Mccoy 2000). producer countries with these two consumer
Before the Taliban took power in 1996 and estab- countries. Due to Afghanistan’s proximity to
lished the Islamic Emirate of Afghanistan in western Europe and the Russian Federation, illicit
Kabul, the country was largely controlled by drugs from there are trafficked mainly to these
regional powers (Cornell 2006). Until today, the two destinations via three major drug trafficking
central government’s inability to exercise its routes: the Balkan route, the Northern route, or
administrative power over different regions in the what might be called the Pakistani route, where
country is still the primary reason that opium neighboring Pakistan is simply used as a distribu-
cultivation thrives. Ninety-eight percent of opium tion center. Iran and Turkey are the major transit
production in Afghanistan is concentrated in nine countries of Balkan route, and Central Asia is
southern and western provinces—areas under the responsible for drugs trafficked from Afghanistan
strong influence of antigovernment elements or to the Russian Federation.7 Among Central Asian
organized criminal networks. The United Nations countries, Tajikistan is the most vulnerable nation
Department of Safety and Security (UNDSS) affected by drug trafficking due to its long shared
classified the security level of these provinces as border with Afghanistan. Weak border control
high or extreme risk (UNODC 2010b). and ethnic connections on the two sides are
Lack of security is also the main reason the also contributing factors (Engvall 2006).8 Drug
Golden Triangle was at one time able to become trafficking in Tajikistan is primarily small scale;
the world’s largest opium cultivation area. In for example, about 80% of seizures made from
7
6
The average farm-gate price of dry opium at harvest Central Asian countries include Tajikistan, Uzbekistan,
time (weighted by production) in 2010 reached $169/kg Turkmenistan, Kyrgyzstan, and Kazakhstan.
(a 164% increase) compared to 2009. As a market 8
The Tajio population, situated mostly in the northern
response, the gross income for farmers also increased border area, constitutes 20–25% of Afghanistan’s
36% (to $4,900) (UNODC 2010b). population.
118 H. Gao
2005 to 2007 totaled 10 kg or less, with the nature of ATS manufacture, only very limited
average size of 2.6 kg (UNODC 2010a). In the number of ATS laboratories are uncovered by
third drug trafficking route via Pakistan, drugs law enforcement. For example, in Myanmar, a
are trafficked to many destinations, including major ATS producer in Asia, only 39 manufac-
Iran (with Europe as the final destination), Africa, turing facilities (mostly small scale) have been
the Middle East, and other Asian countries detected over the past decade (UNODC 2010c).
(UNODC 2010a). Because of the clandestine nature of ATS produc-
Myanmar, the second-largest opium-producing tion, it is impossible to estimate its scope. Clearly,
country, is also central to the global heroin trade. gathering global ATS data is an urgent need.
Its drug trafficking pattern has been greatly In response to the increase in ATS manufac-
shaped by changes in the consumer market. While turing, UNODC launched the Global Synthetics
in the past heroin produced in the Golden Triangle Monitoring: Analyses, Reporting and Trends
area primarily supplied North America and non- (SMART) Program in 2008. The region of East
Asian markets, beginning in the 1990s heroin and Southeast Asia was chosen as the first focus
trafficking became more focused on the Asian region due to the area’s extreme ATS problems.
market, in particular East Asia (Dupont 1999). The first SMART annual report was published in
With China’s economic reform and resulting 2009, and the second report became available in
open-door policy in the late 1970s, more border 2010. The data for these reports were gathered
crossings were created along the border of China from the Drug Abuse Information Network for
and Myanmar. China, initially a gateway for Asia and the Pacific (DAINAP), which was initi-
drugs trafficked to other Southeast Asian coun- ated by the United Nations Office on Drugs and
tries and North America, has gradually become a Crime in 2005.11 In general, those countries (or
major consumer market with more than one regions) with a longer history of ATS abuse, such
million heroin users currently. As observed at as Japan, the Philippines, Singapore, and Taiwan,
cross-border drug trafficking points between have well-maintained national data collection
Myanmar and China (Chin and Zhang 2007, p. 5), systems in place (Humeniuk and Ali 2004).
drug trafficking patterns similar to those in Although South Asia was also included in
Central Asia have become apparent: drugs SMART, only very limited information is avail-
trafficked in large quantities have largely disap- able because unified national reporting systems
peared; instead, small quantities carried by large largely do not exist in those countries.
number of individuals are typical. While ATS manufacturing originated in
Europe, it is evident that the abuse of ATS has
quickly increased in Asia in the past decades.
8.2.2 Amphetamine-Type Stimulants Responding to changes in drug-use culture and,
Market in Asia most importantly, pursuing huge profits from the
underground drug market, heroin manufacturers location of the producer market and the location
have diversified their production by either of the consumer market. How drug trafficking
including synthetic drug manufacture or com- routes develop is primarily determined by the
pletely replacing heroin production (Humeniuk distance between these two markets. In the
and Ali 2004). Now Myanmar has become the case of heroin trafficking, there is a subtle differ-
main producer of opium, heroin, and ATS in ence between the Afghanistan and Myanmar
Asia. China is also considered a major producer markets. While heroin produced in Myanmar
of methamphetamines in Asia—1 of 31 countries tends to be trafficked within the region, heroin
where the largest number of ATS laboratories produced in Afghanistan is trafficked to regions
have been detected (UNODC 2010a). In South beyond Asia. Unlike the heroin market, however,
Asia, India is the main source of manufacture and ATS produced in Asia is consumed locally, and
trafficking of ATS. India has become a source of intraregional drug trafficking is more typical with
ketamine largely because the drug is manufac- its relatively less expensive network and quick
tured legally in the country. In spite of increased money return (Dupont 1999).
controls on the substance by the Indian
Government, the drug continues to be trafficked
to countries in East Asia (UNODC 2008).12 The 8.2.3 Criminal Justice Responses
quantity of ketamine seized by Indian law to Drug Trafficking
enforcement agencies has continuously increased
over the past 5 years (UNODC 2010c).13 ATS With increased globalization and economic
manufacture and trafficking have also been active activity between countries, it becomes more
in other regions of Asia. The Middle East has challenging to control drug trafficking. While
emerged as a major new market with demand for geography plays an important role in drug
pills called Captagon, the brand name for trafficking, as reviewed previously, a country’s
Fenethylline (or Phenethylinne), a member of political, social, and economic factors are also
ATS. It was reported that close to 30% of global linked to the effectiveness of its criminal justice
ATS seizures in 2007 were made in the Near and system’s responses to drug trafficking. Above all,
Middle East (UNODC 2009c). For the first time, the weakness of state institutional capacity is one
ATS laboratories have been located in Iran and of the major concerns in responding to drug
Sri Lanka (UNODC 2010a). trafficking (Jackson 2006). Weak states are more
As reviewed in this section, Afghanistan and vulnerable to the drug trade, and the drug trade in
Myanmar are the two major players in the world’s turn further weakens the state’s administrative
illicit drug market in Asia. Drug markets centered power (Cornell and Swanström 2006), as is
in those countries have also been firmly estab- evident in Afghanistan’s and Myanmar’s experi-
lished. Though it is relatively easy to identify ence with the drug trade. In Myanmar, due to the
drug-producing countries, it is more difficult to cease-fire agreement between the government
locate major drug trafficking routes due to their and armed ethnic opposition groups, the latter
dynamic nature. As observed in Afghanistan and gained a self-administered autonomy that rendered
Myanmar, the emergence of drug trafficking them largely out of the government’s control.
routes is determined by two major factors: the Meanwhile, drug production and trafficking are
also driven by local economic factors. For example,
in Tajikistan, about 30% of its population is
12
Ketamine has also emerged as an adulterant in the man- financially depending on the illicit drug business.
ufacture of ecstasy in East and Southeast Asia (UNODC Largely due to this reason, it is not unusual that
2008).
13
Central Asian countries’ budgets rely heavily on
The quantity of ketamine seized by Indian law enforce-
ment has increased from 60 kg in 2005 to more than 1 mt
drug trafficking, as demonstrated in Kyrgyzstan
in 2009 (UNODC 2010c). and Tajikistan (Jackson 2006). In Myanmar, the
120 H. Gao
primary drug of use in China, Malaysia, use began as early as the 1940s after the Second
Myanmar, Singapore, and Vietnam, most coun- World War (Sato 2008); in South Korea it emerged
tries in Asia witnessed stable or decreasing trends in the mid-1980s (Chung et al. 2004). However,
in heroin use (including Myanmar, an opium in China, ATS use did not start until the early
producer country). Lao PDR is the only country 1990s.
in Southeast Asia that reported increased opium To understand the scope of illicit drug abuse,
use in 2009 (UNODC 2009c). As a general some Asian countries or regions, such as China,
phenomenon, both opium and heroin use tended Hong Kong, Macao, Malaysia, Myanmar, and
to decline in Asia while the use of metham- Vietnam, maintain a system of registration for
phetamine pills has increased tremendously apprehended drug users. According to these
(UNODC 2009c; UNODC 2010d). However, in databases, China, Indonesia, the Philippines, and
Afghanistan, illicit drug use has shown a com- Thailand all have drug use populations of more
pletely different pattern. Cannabis, opium, and than one million. However, the real number of
heroin are the top three drugs abused there, with drug users is estimated to be much larger because
a significant increase in opium and heroin use many drug users may never have been caught by
since 2005 (53% and 140%, respectively) (UNDOC police, in particular ATS users. Only a few Asian
2009a).19 countries use a national household survey (as
In East and Southeast Asia, ATS, in particular does Thailand and the Philippines) or national
methamphetamine, make up one of the top three surveillance of drug use (as does China and
drug categories consumed in all countries in the Cambodia) to compile information about drug
region. While methamphetamine is a primary users (Devaney et al. 2007). However, in South
drug abused in East and Southeast Asia, the so- Asia, the data system often fails to differentiate
called captagon (often containing amphetamine) between various synthetic drugs (UNODC 2010c).
has gained popularity in the Near and Middle As indicated in the United Nations report, the
East (UNDOC 2010c). It is evident that drug use lack of data in some parts of Asia and the Pacifica
culture in these countries is beginning to favor Islands is still an obstacle to estimating the scope
ATS substances. At the present time, more than of the drug use problem (UNDOC 2010a).
two-thirds of the world’s ATS users live in the According to the UNODC, while cannabis users
region, and the number is still growing (UNODC and opiate users are reported systematically by
2010c). Regardless of differences in social, Asian countries, ATS and cocaine users are only
cultural, and economic factors, young people in reported by East/Southeast Asian countries; for
the area are more likely to use ATS in club all other regions, including South Asia, Central
settings for social, recreational reasons or simply Asia, and the Near and Middle East, not even
to improve productivity and concentration estimates can be provided (UNODC 2009c). To
(Humeniuk and Ali 2004; UNDOC 2009c). improve the understanding of ATS abuse in Asia,
Unlike in Afghanistan, young people in the UNODC Regional Centre for East Asia and the
Golden Triangle (Wa area), with its increased Pacific launched the project Improving ATS Data
involvement in the methamphetamine trade, and Information Systems (TDRASF97) in 2002 in
have begun to switch their drug use preference an attempt to aid the countries in the region in
from opium or heroin to methamphetamine, and developing and analyzing their national data.20
a large consumer market for ATS use also has As previously addressed, the SMART Program
formed in Thailand (Chin 2009). The abuse of
methamphetamine began in East Asian countries 20
Countries participating in the project are Cambodia,
at different times. In Japan, methamphetamine China, Indonesia, Lao PDR, Myanmar, the Philippines,
Thailand, and Vietnam while government agencies in
Australia, Brunei, Darussalam, Japan, Malaysia, and
19
In Afghanistan, there are approximately one million Singapore participate in the network. The project is
adult drug users, who represent about 8% of the popula- supported through funding provided by the governments
tion aged 15–64 (UNDOC 2009a). of Australia and Japan (UNODC 2007).
122 H. Gao
was created in 2008. According to its report, it is worldwide with the largest population of IDUs.22
estimated that between 3.4 million and 20.7 million According to the United Nations, East and
persons in the region used amphetamines in 2009 Southeast Asia is reported as one of the regions
(UNODC 2010c). in the world (and the only region in Asia) with
both the largest number and highest concentra-
tion of HIV infection rates (UNODC 2009c).23
8.3.2 Consequences of Illicit In 2008, 4.7 million (3.8 million–5.5 million)
Drug Abuse people in Asia were living with HIV, the second-
highest concentration in the world next to sub-
Illicit drug abuse has significant consequences Saharan Africa. India alone accounts for roughly
for both the individuals who abuse drugs and half of Asia’s HIV prevalence. In the same year
society at large. While drug users quite often are the total number of AIDS-related deaths in Asia
involved in income-generating activities to reached 330,000 (260,000–400,000). For East
finance their drug use, substance abuse also Asia, the rate of HIV-related mortality in 2008
brings about other social harms, HIV/AIDS in was more than three times higher than that in
particular. Drug injection and needle and syringe 2000 (UNAIDS 2009).
sharing have been linked to increased HIV/AIDS. Infection rates among IDUs in northern
While injection is commonly used to administer Myanmar are among the highest in the world.
heroin, it is also used to administer ATS in some Myanmar, Cambodia, and Thailand are the
Asian countries with growing numbers (Devaney countries affected most by HIV/AIDS in Asia
et al.2007; Humeniuk and Ali 2004; Kramer et al. (Kramer et al. 2009). In Central Asia, countries
2009).21 Since the first case of HIV due to drug that are located on the main drug trafficking
injection in Asia was identified in Bangkok in route with high concentrations of poverty and
1987, the drug-related HIV infection rate has poor health care systems, such as Uzbekistan,
substantially increased in the region (UNDOC Tajikistan, and Turkmenistan, have been struck
2009a). much harder by HIV (Walker 2005). A survey
One of the most problematic issues related to conducted with female regular sex partners of
injection is needle and syringe sharing. In a recent drug users and injection drug users (N = 4,612) in
large-scale survey (N = 2,614) conducted in Bangladesh, Bhutan, India, Nepal, and Sri Lanka
Afghanistan, the majority of IDUs (87%) had also indicated a low condom use rate (21%)
shared a needle and syringe with other drug users between male drug users and their female sex
(UNDOC 2009a). A cross-sectional study con- partners. Due to the high HIV infection rates in
ducted in Vietnam among young and female drug these countries, a big concern is whether HIV
users under age 25 recruited from drug treatment infection will easily spread to the general popula-
centers (N = 560) and the community (N = 240) tion (Kumar et al. 2008).
also indicated that over half of them began inject-
ing heroin or opium (57%) after a year’s smoking.
Among injectors, 23% shared needles and 71% 8.3.3 Criminal Justice Responses
were sexually active (among them, 77% had to Substance Abuse
unprotected sex) (Thao et al. 2006).
Among the world’s drug use population, a Illicit drug use is highly criminalized in many
large number of users inject drugs—between 11 Asian countries. With a rapidly increasing prison
and 21 million people worldwide are injection
drug users. Although the heroin epidemic
22
emerged in China only in the late 1980s, China China, the United States, the Russian Federation, and
Brazil together account for 45% of total IDUs (UNODC
has been listed as one of the four countries 2009c).
23
This report also included Eastern Europe and Latin
21
The most common means of administration for ATS America (Eastern Europe and Central Asia also had very
substances are smoking, snorting, and fume inhaling. high HIV infection rates).
8 Drug Abuse and Drug Traf ficking in Asia 123
population and annual arrest rates, Southeast rate among those who were released from
Asia would appear to have the toughest laws in compulsory treatment programs was extremely
the world against drug users (Gallahue and Lines low (Gao 2011). Another study that examined
2010). Myanmar is one of those countries that recidivism rates of male drug users in Taiwan
has criminalized drug addiction. According to its suggested that the recidivism of illicit drug users
antidrug law published in 1993, if drug addicts in Taiwan after detoxification in the detention
fail to register with government medical facilities center was substantially high (Chiang et al. 2009).
or are unsuccessful in treatment, they are subject Meanwhile, regardless of growing drug-related
to 3–5 years’ imprisonment (Kramer et al. 2009). prison populations, no Asian prisons have needle
In Thailand, according to its “war on drugs” and syringe exchange programs inside the facili-
policy initiated in 2003, drug users who failed ties, and India, Indonesia, and Malaysia are the
to participate in the drug treatment programs only countries that provide limited opioid substi-
provide by the government were subject to the tution programs to inmates (Harm Reduction
compulsory drug treatment for 4 months International 2010). In recent years, a change in
(Vongchak et al. 2005). In Afghanistan, con- antidrug laws from compulsory rehabilitation to
sumption of opium products may also result in a community-oriented programs has been witnessed
prison term for 3 months (Todd et al. 2005). in Asian countries. For example, in China, 47,000
Harsh punishment for substance abuse raises drug users were directly admitted to community-
concern about compulsory drug treatment centers based treatment programs together with 35,000
in some Asian countries, which often have exer- drug users who were released from compulsory
cised arbitrary detention and failed to follow due rehabilitation programs (NNCC 2010).
process of law (Harm Reduction International While incarceration of drug users alone has
2010).24 As a result, a large number of drug users seldom led to successful abstention, drug treat-
have been incarcerated merely because of drug ment programs have been viewed as a more effec-
consumption. For example, in Thailand, the tive approach to changing drug users’ behaviors.
number of drug-related incarcerations increased However, drug treatment programs are only
five times (from 12,860 to 67,440) between 1992 provided to limited number of drug users glob-
and 1999 (Beyrer et al. 2003). In China, while ally. In 2008, there were only between 12 and
the central government began to emphasize 30% of problem drug users worldwide who had
community-based treatment programs in the received treatment though the majority of them
recent years, the total number of drug users who felt they needed it (UNODC 2010a). Hong Kong
served time in compulsory treatment programs opened the first methadone maintenance treat-
still reached 173,000 in 2009 (NNCC 2010). ment (MMT) in Asia and was credited for its
As far as incarceration is concerned, inadequate overall quality and wide coverage (Reid et al.
health care inside these facilities is another issue. 2008). Thailand, Indonesia, China, and Malaysia,
Forced or involuntary testing for HIV in compul- all developed the program one after another. After
sory drug rehabilitation centers has also been China initiated its methadone program in 2003,
reported in several countries, such as China, more than 500 methadone treatment clinics were
Malaysia, and Vietnam (Harm Reduction developed in 23 provinces (including autono-
International 2010). mous regions and municipalities) by the end of
Despite such deterrents to drug use, post- 2007; in all, 95,000 drug users were treated (Yao
release relapse rates are extremely high in Asian 2008). Several other Southeast Asian countries
countries. A study conducted in China with are also making efforts to develop meaningful
female heroin users indicated that the success drug treatment programs. In 2008, Vietnam initi-
ated its pilot methadone treatment program with
24
1,800 heroin users and plans to develop the pro-
Forced detoxification and labor are also commonplace
inside these facilities (Harm Reduction International gram across the country (Hung 2010). Cambodia,
2010). which has been criticized for its boot-camp style
124 H. Gao
compulsory drug rehabilitation centers, opened Asian countries have adopted harsh sentencing
its first methadone clinic for heroin users in 2010 policies against illicit drug trafficking, it is still a
(De Launey 2010). However, there are still no thriving business in the region. Soon after one
drug treatment programs available for addicts in drug trafficking network is destroyed, a new one
the Wa area of Myanmar—an area with severe will emerge and replace the previous one because
drug trafficking and abuse problems. Drug addicts of the internal drive for profits.
there have to deal with their addiction all on their Regarding illicit drug production in Asia, as
own (Chin 2009). While there are other drug- previously addressed, the two largest opium
related programs available for traditional drug and heroin producer countries, Afghanistan and
users, such as needle and syringe (NSP) and opi- Myanmar, are located in Southwest Asia and
oid substitution therapy (OST) programs, only Southeast Asia, respectively. While these two
just over half the countries in Asia have these nations have different social, economic, and
programs. In several Asian countries, the current cultural traditions, they share one thing in common:
drug laws of Asia are a major obstacle for the opiate poppy production areas located in poor
implementation of these programs. For example, areas of these undeveloped countries. According
Malaysia, Thailand, Brunei, Hong Kong, and to the Afghanistan Opium Survey by the United
Macao do not allow needle–syringe exchange Nations and field research conducted in the
programs (Reid et al. 2008). Golden Triangle (Chin 2009; Kramer et al. 2009),
While traditional drug treatment programs in the main reason farmers cultivate the opiate
Asia focus on opiate dependency due to the large poppy is survival. In the case of the Golden
number of opium and heroin users in Asia, the Triangle, farmers in both Myanmar and Laos
dramatically increased ATS use population in the have not been provided alternative livelihoods
region certainly demands new treatment pro- despite opium bans, which not only cut off the
grams for ATS users. However, only very limited farmers’ financial sources from opium cultivation
treatment services are currently available to them, (UNODC 2010b). Realistically, there is no reason
including specialized drug treatment services to believe that opium cultivation will be elimi-
provided in general hospitals, and psychiatric nated from the area if farmers cannot find a legiti-
facilities (UNODC 2010c). mate way to make a living. Rather, they may
choose to cultivate opiate poppies secretly in
remote sites that may be hard to detect by outsiders
8.4 Future Trends and Conclusions (Chin 2009).
While the primary reason for farmers to culti-
The previous sections briefly reviewed and vate opium is to secure family income, the
discussed illicit drug trafficking and abuse in government’s determination to ban opium may
Asia. Although the illicit drug trade is involved in have a strong impact on its cultivation. In a survey
a complicated chain network, only drug produc- conducted in 2010 with farmers in Afghanistan,
tion, drug trafficking, and drug consumption are the farmers (25%) listed the government ban on
essentials. Drug trafficking connects the drug opium cultivation as a primary reason for stop-
supply with drug demand so that the illicit drugs ping opium cultivation (UNODC 2010b). This
can reach the end customers—drug users. The finding suggests that if the central government of
large profits obtained from illicit drug trafficking these drug producer countries and the countries
suggest that this illegal business will not vanish making up the drug trafficking gateways had a
in the near future. What we have learned from strong determination to control illicit drug pro-
past experience is that it is impossible to com- duction, this determination would produce some
pletely remove drug trafficking businesses from significant impacts on drug production. However,
the underground drug market even by using the there are three major obstacles to reach this
toughest sanction on drug offenses—the death goal. As suggested in the fieldwork conducted in
penalty. As reviewed previously, while most Myanmar, the illicit drug trade—drug money
8 Drug Abuse and Drug Traf ficking in Asia 125
coming from drug lords—has contributed greatly these, the influence of traditional drugs on the
to the Burmese Government’s financial sources. next generation is apparent. The most troublesome
Therefore, drug control in Myanmar is very much issue for drug users, however, is access to drug
politicized rather than put into action (Chin treatment programs. The lack of treatment facili-
2009). Compared to Afghanistan, the Myanmar ties, in particular in poorly developed areas such
Government is under pressure both from interna- as the border of Myanmar, Thailand, and China,
tional society and its neighboring countries, in intensifies demand (Chin 2009). While Central
particular the Chinese Government, to control its Asia is one of the few regions in the world where
drug cultivation. Still, the fact that the central the HIV epidemic remains clearly on the rise,
governments in both Afghanistan and Myanmar strong resistance to OST still widely exists. For
can hardly control their opiate cultivation areas is example, such a program was discontinued by
another obstacle for implementing any meaning- the Uzbek Government in 2009 (Latypov 2010).
ful solutions. Lastly, impoverished economies in In addition, while the demand for special health
these major producer countries and countries on care is high among drug users, such facilities are
the major trafficking routes make it impossible to rare among Asian countries (Reid et al. 2008).
make any radical changes without financial Illicit drug trafficking and abuse have been
support from the international society. It should global issues for centuries. Based on a historical
be understood that drug trafficking is not inde- analysis of several countries’ successful experi-
pendent from all the other problems that these ence (the United States, China, Turkey, and
drug-producing countries face. Thailand), Mccoy (2000) suggests that supply
Based on the available information, while reduction is the key to success while the role of
global seizures of ATS have remained at very the state is critical, in particular, in increasing
high levels in recent years, due to the clandestine state control over illicit drug production regions
nature of ATS manufacture, it is even more and restraining official corruption. Based on the
difficult to estimate the scope of the problem and observation of the Golden Triangle, other schol-
make corresponding strategies. Based on increasing ars agree that while supply reduction is essential,
demands from the consumer market, more and a successful strategy also needs to include
more young people favor these synthetic drugs, demand reduction (Chalk 2000; Chin 2009).
providing sufficient reasons to believe that the Specifically, the implementation of crop-substi-
manufacture of ATS will not shrink in the near tution programs in producer countries, a far-
future. Meanwhile, the sharp increase in the reaching mass movement against illicit drug
heroin price in 2009 due to reduced yield related abuse, and increased international and intra-
to poppy disease also forced some heroin users to regional counter-narcotics cooperation and
switch to synthetic drugs. With demands from the enhanced border control and anticorruption mea-
consumers’ market and the convenient access to sures seem more promising (Chalk 2000; Mccoy
the two largest ATS precursor countries, Indian 2000; Walker 2005). Due to increased globaliza-
and China, there is no clear indication that the tion, importantly, any interventions should be
ATS production and abuse will go down, at least coordinated regionally or internationally, as pro-
in the near future. posed by the United Nations (UNODC 2009c).
For certain geographic areas where opium or
heroin use has been a tradition, the influences of
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Human Trafficking in Asia
9
R. Thilagaraj and S. Latha
following definition of the UN is adopted to Table 9.1 Types and major forms of trafficking in Asian
define trafficking: countries
Country Forms
“The recruitment, transportation, transfer, harboring
or receipt of persons, by means of the threat or use Cambodia Commercial sexual exploitation, domestic
of force or other forms of coercion, of abduction, servitude, begging, labor, marriage,
of fraud, of deception, of the abuse of power or of construction, agriculture, and fishing
a position of vulnerability or of the giving or (China, Ministry of Public Security 2009a)
receiving of payments or benefits to achieve the China Forced marriages, illegal adoption, sexual
consent of a person having control over another or exploitation and labor exploitation
debt bondage, for the purpose of exploitation which (UNIAP 2007)
includes prostitution or for placing of holding such Myanmar Forced labor, domestic servitude and
person, whether for pay or not, in forced labour or commercial sexual exploitation, forced
slavery-like practices, in a community other than street hawking and begging, or to work in
the one in which such person lived at the time of shops, agriculture, or small-scale industries
the original act described.” (Archavanitkul 1998)
Thailand Forced labor in fishing-related industries,
factories, agriculture, construction,
domestic work, and begging, commercial
9.2 Types and Major Forms sexual exploitation(UNIAP 2007)
of Trafficking Bangladesh Forced labor, domestic servants, and
prostitution (China, Ministry of Public
Security 2009b)
Human trafficking is occurring in various forms India Forced labor, sex trafficking, domestic
for various purposes. Among them trafficking for servants, beggars, and agricultural workers
commercial is widespread and most of the Nepal Forced labor and sex trafficking (Nepal
victims are women and children in vulnerable Office of the National Rapporteur on
Trafficking in Women and Children 2008)
situations. This apart, trafficking for forced labor
Sri Lanka Sex trafficking, domestic child sex tourism
is more in many of the Asian Countries. Various (Squire and Wijeratne 2008)
forms of trafficking in Asian countries are given Pakistan Forced labor, forced marriages
in Table 9.1.
Table 9.2 Trafficking prosecutions and convictions in Table 9.3 Human trafficking cases, offenders, and victims
China—2010 in Laos—2008 and 2009
2008 2009 Category Category 2008 2009
1,353 1,636 Women/children trafficking cases Total trafficking cases 38 50
prosecuted in Chinese courts Alleged offenders 23 74
2,161 2,413 Individuals convicted of a trafficking Victims 49 103
crime Cases forwarded to the prosecutor’s 8 8
1,319 1,475 Individuals convicted and sentenced office
to more than 5 years imprisonment, Cases that lacked sufficient substantive 30 –
life imprisonment or death evidence with which to pursue criminal
61% 61% Convictions given sentences of more prosecution
than 5 years imprisonment Cases still under investigation – 26
Source: The Mekong Region Human Country datasheets Source: The Mekong Region Human Country datasheets
on human trafficking 2010 on human trafficking 2010
China (China: International Labour Organization labor exploitation of men and boys on plantations
2009). China has the world’s largest number of (see Table 9.3). The total official number of Lao
Internet users and young girls are sexually victims of trafficking in 2009 is 128. This includes
exploited through this medium. Table 9.2 reveals both cross-border and domestic trafficking. In
that there has been an increasing trend of women 2009 the Ministry of Labor and Social Welfare
and children trafficked and persons convicted received 155 returnees from Thailand (148 girls
for trafficking for more than 5 years. and 7 boys), 144 were children (Lao Department
of Social Welfare, 2009). Also see Fig. 9.1. Main
Employment Sectors of Trafficked Persons in
9.3.3 Japan Lao PDR for the domestic trafficking victims
are mainly found in the entertainment sectors.
Many of the trafficking victims were coerced into Internationally, Lao PDR victims of trafficking
commercial sexual exploitation in strip clubs, sex work in domestic services, the entertainment sec-
shops, hostess bars, private video rooms, escort ser- tor, agriculture, fisheries, and garment factories.
vices, and mail-order video services. NGOs reported
that in some cases brokers used drugs to subjugate
victims. Women also voluntarily migrate to work in 9.3.5 Myanmar
Japan but are later coerced into exploitative condi-
tions. They are usually held in debt bondage for Reports indicate a trend of trafficking of women
$26,000–$43,000 for their living expenses, medical from Myanmar to China, for forced marriage
care, and other necessities. There are 60,000–70,000 with Chinese citizens. Girls and young women
Filipina dancers in Japan (Calvez 1998). Trafficking with low incomes are vulnerable to labor or sex-
laws exist but are not effectively enforced ual exploitation. Most of the Myanmar victims of
(Ganjanakhundee 1998). There are more than trafficking typically find themselves working in
150,000 foreign women in prostitution in Japan; the sex industry, in labor exploitation such as in
more than half are Filipinos; and 40% are Thai. factories or working on plantations, fishing boats,
(CATW 1998). There were 19 human trafficking or in marriages with Chinese men. Some girls are
cases investigated in Japan in 2010, and 28 in 2009. taken by means of deception, but increasingly
they are informed that they will marry Chinese
men. They are prepared to accept the marriage
9.3.4 Lao PDR arrangement, as they have few options. According
to Myanmar’s Anti-Trafficking Unit, the total
Current trafficking trends in Lao PDR include number of trafficking cases in 2009 was 155.
domestic trafficking of women and girls for sex- Of these, 85 cases involved forced marriage,
ual exploitation in the entertainment sector and 19 cases involved forced prostitution, 13 cases
132 R. Thilagaraj and S. Latha
Other
Mekong, 6 2
East Asia
Persons investigated for trafficking in persons in are trafficked for adoption by foreign families
Thailand (2005-2006) (often Chinese). Vietnam is increasingly a desti-
25 nation for child sex tourism, with perpetrators
20 from Japan, the Republic of Korea, China,
15
Taiwan, the UK, Australia, Europe, and the USA.
22
Men of Vietnamese minority ethnic groups are
10
trafficked into labor exploitation in mines and
5
7 brick factories in China. Main Employment
0 Sectors of Trafficked Persons are sexual exploi-
2006 2007 tation, domestic labor, mining, construction,
Source: Children, Juveniles and Women Divison fishing, forced begging, selling of flowers and
lottery tickets, and manufacturing (China,
Fig. 9.4 Thailand, investigations, 2005–2006
Ministry of Public Security 2009a).
Fig. 9.5 Vietnam, Persons investigated for trafficking in women and children in
investigations, 2003–2007 Vietnam (2003-2007)
800
700
600
500
400
681
300 607
200 344
100
0
2005 2006 2007
Source: NCB Interpol and Criminal Investigation Division
Table 9.5 Numbers of various crimes under human trafficking during 2005–2009 and percentage variation in 2009
over 2008
Year
Crime head 2005 2006 2007 2008 2009 Percentage variation
Procuration of minor girls (Sec. 366-A, IPC) 145 231 253 224 237 5.8
Importation of girls (Sec. 366-B, IPC) 149 67 61 67 48 −28.3
Selling of girls for prostitution (Sec. 372, IPC) 50 123 69 49 57 16.3
Buying of girls for prostitution (Sec. 373, IPC) 28 35 40 30 32 6.7
Source: Crime in India—2009
is a daily occurrence. India and Pakistan are has shown that these enclaves have been used as
the main destinations for children under 16 recruitment and collection sites by traffickers
who are trafficked in south Asia (Iijima 1998). (Gazi et al. 2001). See Table 9.6.
• More than 40% of 484 prostituted girls rescued
during major raids of brothels in Mumbai in
1996 were from Nepal (Iijima 1998). 9.3.10 Nepal
• The brothels of India hold between 100,000
and 160,000 Nepalese women and girls, 35% Nepal is primarily considered a country of
were taken on the false pretext of marriage origin—a source for the trafficking of men,
or a good job (Coomaraswamy 1997). women, and children. The girls end up in brothels
in India or Pakistan or in Middle Eastern or
South Asian countries (Times of India 2003).
9.3.9 Bangladesh Within Nepal, there has been some attention on
the foreign child sex tourism trade within the
Bangladesh is predominantly a source country country. Nepal also has a system of bonded
for victims of cross-border trafficking due to labor where entire families may be bonded and
migration in search of employment. Many border forced to work in a range of occupations. This is
areas are frequently used as land routes for especially so among lower castes and socially
trafficking. There are 111 Indian enclaves in marginalized groups, who are particularly vulner-
Bangladesh and 51 enclaves of Bangladesh in able to dominance and exploitation. Overall
India. Research carried out by the Bangladesh Government efforts for 2006 are summarized in
National Women Lawyers Association (BNWLA) Table 9.7.
9 Human Traf ficking in Asia 135
Table 9.6 Trafficking arrests, prosecutions, and convictions for Bangladesh (2002–2008)
2002 2003 2004 2005 2006 2007 2008
Arrests 60 72 – 150 – 106 178
Prosecutions – – 70 87 70 101 90
Convictions 3 17 42 36 43 20 37
Sentences Ranged from – – 27 life 4 death sentences; 18 life sentences; 2 26 life sentences;
20 years to sentences 32 life sentences lesser prison terms 11 lesser prison
life terms
Source: Trafficking in persons report, 2003–2009
Table 9.7 Efforts taken by the Government of Nepal to prevent and protect victims of trafficking in 2006
Interception prevented from Application received for missing Found children and Counseling on
being trafficked women and children women safe-migration Reintegrated
2,398 638 100 26,729 2,372
Source: Maiti Nepal. Office of the National Rapporteur on trafficking in women and children, 2006
Victims Protection Report (TVPA) of 2000 victims, including setting up DNA database, joint
(reauthorized in 2003 and then in 2005). Tier I action of multifunction police, and immediate
countries are deemed to be in full compliance. response mechanism. Campaigns of combating
Tier II countries are not in compliance but are forced prostitution, illegal employment, and rescue
making significant efforts to become so. Tier III of street children and child beggars are launched
countries are not compliant and are not making effectively.
significant efforts toward that end. Most of the
Asian countries are assigned Tier 2 status as they
do not fully comply with the minimum standards 9.6.3 Japan
for the elimination of trafficking, however, are
making significant efforts to do so, despite limited Japan does not have comprehensive anti-
resources. Four countries—China, Thailand, trafficking laws, and does not keep statistics on
Vietnam, and Bangladesh—were put on the Tier II the number of trafficking cases. The government
Watch List due to its failure to provide evidence reported prosecuting and convicting five individ-
of increasing efforts to combat trafficking, uals in 2009 under Penal Code (Article 226).
particularly its failure to convict traffickers and Cooperation between the different bureaucracies
public officials involved in trafficking. In terms that handle trafficking cases is not always condu-
of organizational infrastructure and efforts at cive to establishing a clear statistical record that
prosecution and prevention, the following is a includes prosecutions, convictions, and sentenc-
concise summary by Asian country. ing. Japan’s 2005 amendment to its criminal
code, which prohibits the buying and selling of
persons, and a variety of other criminal code arti-
9.6 Prosecution cles and laws, including the Labor Standards
Law, and the Law for Punishing Acts Related to
9.6.1 Cambodia Child Prostitution and Child Pornography crimi-
nalizes trafficking and a wide range of related
Cambodia has a specialized Anti-Human activities. However, it is unclear if the existing
Trafficking Department and Juvenile Protection legal framework is sufficiently comprehensive to
Police Department. Officers from these depart- criminalize all severe forms of trafficking in
ments, in cooperation with prosecutors, carry out persons. The 2005 Criminal Code amendment,
investigations, apprehensions, arrests, prosecu- prohibiting the buying and selling of persons,
tions, and convictions. Cambodia has a focused prescribes penalties of up to 7 years’ imprison-
campaign dedicated to combating human ment, which is sufficiently stringent.
trafficking. Also there is a cadre of specialist
judges and prosecutors with strong understanding
of the issues and sensitivities concerning human 9.6.4 Laos
trafficking cases in Cambodia (CMS 2009).
The specialist unit for law enforcement/prosecu-
tion in Lao PDR is the Anti-Trafficking Division
9.6.2 China (ATD). The ATD and the Department of
Investigation are responsible for collecting
Both local and central governments provide fund- evidence for trafficking cases and submitting it to
ing for anti-trafficking activities in China. In the Prosecutor’s Office for trial in the Supreme
2009, a large, nation-wide campaign was Court. In cooperation with international agen-
launched by Ministry of Public Security to com- cies, the Government of Lao PDR has been
bat different forms of trafficking. The campaign working to strengthen the legal sector in order
has initiated a number of good practices in to bring more trafficking offenders to justice
suppressing trafficking crimes and rescuing (DSW 2009).
138 R. Thilagaraj and S. Latha
The specialist units for prosecution in Myanmar The Government of Bangladesh showed progress
are the Anti-Trafficking Unit (at the central level) in convicting sex traffickers of females, but not
and the Anti-Traffi cking Taskforce (at the traffickers of men, during the reporting period;
provincial level, located in 22 townships). The however, the government drafted an anti-
human resources for prosecution include members trafficking law that includes criminal prohibitions
of the Myanmar Police Force, prosecutors, and for all forms of trafficking, with stringent sent-
judges. Special courts dedicated to hearing ences, and submitted the proposed law into the
trafficking cases are established in 2010 (MHA parliamentary process in December 2010. During
2010). the reporting period, the government obtained the
convictions of 42 sex trafficking offenders and
sentenced 24 of them to life imprisonment under
9.6.6 Thailand Sections 5 and 30 of the Repression of Women
and Children Act; 18 were sentenced to lesser
The Anti-Human Trafficking Division (AHTD) prison terms. This is an increase from the 32
focus solely on human trafficking, including male convictions obtained in 2009, with 24 offenders
victims of trafficking. The Office of the Attorney sentenced to life imprisonment. The government
General also has a Centre against International prosecuted 80 cases involving suspected
Human Trafficking (CAHT), which is responsible trafficking offenders and conducted 101 investi-
for prosecuting trafficking cases. The Department gations, compared with 68 prosecutions and 26
of Special Investigations (DSI) under the Ministry investigations during the previous year. Fifty-
of Justice (MOJ) is involved in investigating three prosecutions resulted in acquittals; how-
human trafficking cases that are deemed to be ever, under Bangladeshi law the term “acquittal”
“special cases.” Thailand has an Anti-Trafficking also can refer to cases in which the parties settled
in Persons Fund which may be used for the pros- out of court or witnesses did not appear in court.
ecution of cases related to cross-border human Most sex trafficking cases are prosecuted by 42
trafficking. special courts for the prosecution of crimes of
violence against women and children spread
throughout 32 districts of the country; those
9.6.7 Vietnam courts are generally more efficient than regular
trial courts. The Ministry of Home Affairs’ Anti-
The departments/ministries that work coopera- Trafficking Monitoring Cell continued to collect
tively to prosecute trafficking cases include the data on trafficking arrests, prosecutions, and
following: The Investigation units at all levels of rescues. The Government of Bangladesh did not
the Ministry of Public Security; The Border provide data on investigations, prosecutions,
Guard Command; The Ministry of Justice, and convictions, and sentencing of public employees
The Supreme People are Court and the Supreme complicit in human trafficking. The country’s
People’s Prosecutorial Office. An Assessment of National Police Academy continued to provide
the Legal System in Vietnam in comparison with anti-trafficking training to police officers who
the UN Protocol to Prevent, Suppress and Punish went through entrance training.
Trafficking in Persons, especially Women and
Children; and the UN Protocol against the
Smuggling of Migrants by Land, Sea and Air, is 9.6.9 India
completed by the Ministry of Justice in coopera-
tion with the UNICEF and the UNODC. (China, The government made progress in law enforce-
Ministry of Public Security 2009b) ment efforts to combat human trafficking. India
9 Human Traf ficking in Asia 139
prohibits and punishes most, but not all, forms of with 172 offenders convicted in 138 cases tried
human trafficking under a number of laws. The in court, with 82 cases resulting in convictions
government prohibits bonded and forced labor and 56 case acquittals, in the previous fiscal year.
through the BLSA, the Child Labor (Prohibition The much lower number of convictions reported
and Regulation) Act (CLA), and the Juvenile in the 2010 Report represented only convictions
Justice Act. Moreover, these prison sentences obtained from the Supreme Court, while the
were rarely imposed on offenders. India also numbers offered above represent convictions
prohibits forms of sex trafficking through the obtained from district courts. Some Foreign
Immoral Trafficking Prevention Act (ITPA). Employment Tribunal case convictions under the
Prescribed penalties under the ITPA, ranging Foreign Employment Act may have involved
from 7 years’ to life imprisonment, are sufficiently human trafficking. In 2010; the government
stringent and commensurate with those pre- established a special unit to investigate human
scribed for other serious crimes, such as rape. trafficking within the Central Crime Investigative
The ITPA also criminalizes other offenses. ITPA Bureau. There were no trafficking related investi-
crimes, however, are frequently tried under gations, prosecutions, or convictions of govern-
magistrate courts, which limit sentences to ment officials for complicity in trafficking
3 years, whereas rape cases are generally tried during the reporting period. Between January
under Sessions courts which permit the maximum and March 2010, according to official statistics,
sentences according to the law. Indian authorities the Maoists discharged the 2,973 child soldiers
also used Sections 366(A) and 372 of the IPC, they recruited during the 10-year conflict, some
which prohibit kidnapping and selling children of whom may have been trafficking victims.
into prostitution, respectively, to arrest and pros-
ecute suspected sex traffickers. Penalties pre-
scribed under these provisions are a maximum of 9.6.11 Sri Lanka
10 years’ imprisonment and a fine. A court in the
State of Tamil Nadu in July 2010 issued a land- The Sri Lankan government increased law
mark conviction of 5 years’ imprisonment and a enforcement efforts in addressing human
fine to three bonded labor perpetrators. The trafficking cases. Sri Lanka prohibits all forms of
Government of India’s “Comprehensive Scheme trafficking through an April 2006 amendment
for Strengthening Law Enforcement Response in to its penal code, which prescribes punishments
India” earmarked $12 million over 3 years to of up to 20 years’ imprisonment. Amendments
implement the nationwide anti-trafficking effort. passed in 2009 to the Foreign Employment Act
expanded the powers of the Sri Lanka Bureau of
Foreign Employment (SLBFE) to prosecute
9.6.10 Nepal recruitment agents who engage in fraudulent
recruitment, prescribing a maximum penalty of
Nepal prohibits most forms of trafficking in 4 years’ imprisonment and fines of $1,000, and
persons, including the selling of human beings restricting the amount that employment agent can
and forced prostitution, through its HTTCA, charge. In March 2011, three traffickers were
2008. Prescribed penalties range from 10 to convicted and sentenced to 9 years each for
20 years’ imprisonment, which are sufficiently forcing women into prostitution, in one case.
stringent and commensurate with those pre- This is the first recorded convicted case under Sri
scribed for other serious crimes, such as rape. Lanka’s counter-trafficking amendment. The
According to the Office of Attorney General, 174 Attorney General’s Department claimed two
offenders were convicted in 119 cases tried in additional convictions in 2010 for violations of
court under the HTTCA; 71 cases resulted in the penal code’s statute on child sexual exploitation;
convictions and 47 cases resulted in acquittals both convictions may have involved human
in Nepal’s 2009–2010 fiscal year. This compares trafficking crimes. Both convictions resulted in
140 R. Thilagaraj and S. Latha
suspended jail sentences. Each trafficker had to Relevant Government Institutions and Victim
pay a fi ne of approximately $900, and one Support Agencies in Cases of Human Trafficking,
had to pay compensation of $450 to the victim. 2007 and minimum standards for protection of
In January 2011, the National Child Protection the rights of victims of human trafficking.
Authority (NCPA) completed an investigation Privately run shelters use their own operational
and could not determine the whereabouts of the procedures, for example, those shelters run by
remaining boys allegedly in armed service with World Vision Cambodia. Post-harm assistance is
the Tamil Makkal Viduthalai Pulikal (TMVP)/ provided to victims of trafficking in Cambodia,
Karuna Faction; some of these boys may be including rescue, repatriation, reception in home
trafficking victims. The Sri Lankan Police con- country, family tracing, family assessment, rein-
tinued to teach a counter-trafficking module to tegration, short/medium/long-term shelter
all police recruits during their basic trainings accommodation, medical, legal, psychosocial,
education and vocational education assistance,
and case follow-up. There are many government
9.6.12 Pakistan and non-government victim assistance agencies
in Cambodia which provide shelter and other
The Government of Pakistan made progress in forms of post-harm assistance.
law enforcement efforts to combat human Cambodia has bilateral agreements on recruit-
trafficking in 2009. While the lack of comprehen- ment in place with Thailand, Malaysia, South
sive internal anti-trafficking laws hindered law Korea, and Japan. Several national training pro-
enforcement efforts, a number of other laws were grams are conducted for frontline anti-trafficking
used to address some of these crimes. Several officers in various provinces. Awareness-raising
sections in the Pakistan Penal Code, as well as and educational campaigns on human trafficking
provincial laws, criminalize forms of human and safe migration are conducted by a host of
trafficking such as slavery, selling a child for government and non-government agencies A child-
prostitution, and unlawful compulsory labor, with safe tourism campaign to prevent trafficking in
prescribed offenses ranging from fines to life the tourism industry focused on the urban areas
imprisonment. Pakistan prohibits all forms of of Cambodia, including Phnom Penh, Siem Reap,
transnational trafficking in persons with the and Sihanoukville.
Prevention and Control of Human Trafficking
Ordinance (PACHTO); the penalties range from
7 to 14 years’ imprisonment 9.7.2 China
Centers located in cities across the country, the country, resulting in foreign victims unable to
which provide temporary support to trafficking return home and victims unable to obtain reinte-
victims. In 2009, shelters across the country have gration assistance.
provided relief services to over 12,000 trafficked The Japanese government made limited efforts
women and children, some referred by police to prevent trafficking in persons with assistance
while others were self-reported. Responsibility from international organizations and NGOs. The
for repatriation is shared between the Chinese government continued distribution of posters
Police and shelter staff, sometimes with the assis- and handouts to raise awareness about trafficking.
tance of non-government partners such as Save Authorities also continued law enforcement
the Children. Statistics on the number of victims training at the National Police University and
repatriated from China are not widely available. with IOM assistance. In July 2009, the govern-
One media report suggests that in 2009, 272 victims ment established a temporary working group,
were repatriated from China to Myanmar. which included NGOs, to develop a new National
Throughout 2008 and 2009, bilateral meetings Action Plan to combat trafficking, which was
between Lao PDR and China, and Lao PDR and released in December 2009, though the new
Vietnam were held with the aim of estabishing action plan does not include NGO partnerships.
similar agreements. These include the Memo- Japan is not a party to the 2000 UN TIP Protocol.
randum of Understanding between Lao PDR and
Thailand on Cooperation to Combat Trafficking
in Persons, Especially Women and Children 9.7.4 Lao PDR
(2005), and the Thai–Lao Cross Border
Collaboration on Tracing Missing Trafficked Lao PDR has a working group led by the Anti-
Victims in Thailand (2008–2011). The Lao Trafficking Division, the counseling center of the
Government is also developing a National Lao Women’s Union, the Department of Social
Training Manual on human trafficking to Welfare, and the Prosecutor’s Office dedicated to
strengthen the capacity of front-line officers to victim identification. In 2009, the Ministry of
undertake counter-trafficking activities and Labor and Social Welfare has started two new
promoting counter trafficking initiatives, led by support shelters for vulnerable populations
the Ministry of Public Security. including victims of trafficking. One shelter
located in Savannakhet is supported by Acting
for Women in Distressing Situations (AFESIP),
9.7.3 Japan and the other shelter in Champasak province is
under the supervision of the Ministry of Education
The number of trafficking victims identified and is supported by Village Focus International.
overall by the Japanese government declined for There are now five shelters in Lao PDR which
the fourth consecutive year. Police authorities provides support to vulnerable populations
identified only 17 victims in 2009, down from 36 including victims of trafficking. This support
victims in 2008, 43 in 2007, 58 in 2006, and 116 includes medical assistance, legal assistance and
in 2005. Government efforts to protect Japanese consultation, and vocational training. The organi-
child sex trafficking victims reportedly improved, zations which assist in repatriation are Laos
but the government did not report the number of Women’s Union, IOM, AFESIP, Friends
such victims identified. Although the government International, Village Focus International, and
claims the availability of a long-term residency World Vision. Child safe tourism campaign, run
visa for trafficking victims, no foreign victims by the Lao National Tourism Administration dur-
have ever been granted such a visa. In 2009, ing the 2009 Southeast Asian Games (SEA) and
Japan decreased its funding to the IOM from National radio campaign, run by Lao National
$300,000 to less than $190,000 for repatriation Radio, were organized to raise awareness about
and reintegration assistance, which has had a human trafficking, safe migration, and child
detrimental effect on victim assistance efforts in rights.
142 R. Thilagaraj and S. Latha
assistance. The government did not encourage adequate procedures and resources for proactively
trafficking victims to participate in investigations identifying victims of trafficking among vulner-
against their traffickers. Judges reportedly often able persons with whom they come in contact,
took an adversarial, rather than impartial, stance especially child laborers, women, and children in
when dealing with trafficking victims. prostitution, and agricultural and brick kiln
workers. The expanded protection services over-
seas and provided medical and psychological
9.7.11 Sri Lanka services to Pakistani trafficking victims in Oman.
Some NGOs and government shelters, like the
The government made limited progress in pro- Punjab Child Protection and Welfare Bureau,
tecting victims of trafficking during the year. The rehabilitated and reunited children with their
government forces foreign trafficking victims to families. Female trafficking victims could access
remain in Sri Lanka if they are witnesses in a case 26 government-run Shaheed Benazir Bhutto
until evidence has been given. The Sri Lanka Centers and the numerous provincial government
Bureau of Foreign Employment (SLBFE) operat- “Darul Aman” centers offering medical treat-
ing nine short-term shelters in 2010 in Jordan, ment, vocational training, and legal assistance.
Kuwait, Libya, Oman, Saudi Arabia, and the In September 2009, the government opened a
United Arab Emirates as well as an overnight rehabilitation center in Swat, which included a
shelter in Sri Lanka’s international airport for team of doctors and psychiatrists, to assist child
returning female migrant workers who encoun- soldiers rescued from militants.
tered abuse abroad. The Ministry of Child The government encouraged foreign victims
Development and Women’s Affairs (MOCDWA) to participate in investigations against their
has a memorandum of understanding with IOM traffickers by giving them the option of early
to establish a shelter which can house 10–15 statement recording and repatriation or, if their
women and child victims of trafficking and abuse. presence was required for the trial, by permitting
Government personnel did not employ formal them to seek employment. Foreign victims report-
procedures for proactively identifying victims. edly were not prosecuted or deported for unlaw-
The Commissioner General for Rehabilitation, ful acts committed as a direct result of being
with the assistance of the NCPA, continued to trafficked. The Punjab Child Protection and
operate two rehabilitation centers specifically for Welfare Bureau continued to fund 20 community
children involved in armed conflict, some of organizations aimed at preventing child labor
whom may be trafficking victims, in partnership trafficking. The federal and provincial govern-
with UNICEF. The government did not encour- ments developed and began implementation of
age victims to assist in the investigation and pros- the Child Protection Management Information
ecution of trafficking cases; instead, they System, a national monitoring system that collects
sometimes forced victims to testify if they chose district-level data in five thematic areas, including
to file charges. In addition, prosecutors were child trafficking.
prevented under Sri Lankan law from meeting
with witnesses outside of formal court proceed-
ings. Thus, they had to rely on police to convince 9.8 Conclusion
a witness to testify.
Trafficking is one of the worst and most brazen
abuse of human rights violations. The continuum
9.7.12 Pakistan of violence against poor women and children for
commercial sex and forced labor in inhuman
The Government of Pakistan made some prog- conditions are the manifestations of embedded
ress in its efforts to protect victims of human discriminations based on gender, class, caste,
trafficking. The government continued to lack ethnicity and socioeconomic position. A review
9 Human Traf ficking in Asia 145
of this chapter on human trafficking situation in Coomaraswamy, R. (1997). UN special report on violence
various Asian countries reveals that only a tip of against women. New York:UN.
Ganjanakhundee, S. (1998, September 23). Migrant
the iceberg of the problem has been addressed workers booming as Asian economy declines. Kyodo
and a lot more has to be researched. Asian coun- News.
tries with a culture of strong values based on Gazi, R., et al. (2001). Trafficking of women and children
human rights and fundamental freedom should in Bangladesh. Dhaka: ICDDRB, and Center for
Health and Population Research.
come together to fight against trafficking and Iijima, M. (1998, June 19). S. Asia urged to unite against
take it as a serious social issue to be addressed. child prostitution. Reuters.
There should be a collective fight against this Lao Department of Social Welfare. (2009).Case Report.
modern day slavery by all the stake holders in Lao: Anti-Trafficking Division, Lao PDR.
Ministry of Social Development and Human Security,
these countries of Asian Region through an (2010). Bureau of Anti-Trafficking. Thailand:
effective partnership of governmental and non- Department of Social Development and Welfare in
governmental organizations. Women and Children. Ministry of Social Development
and Human Security, Thailand.
Myanmar Central Body for Suppression of Trafficking in
Persons. (2010). 2009 Annual Progress Report (APR)
References on the Myanmar 5 year National Plan of Action to
Combating Human Trafficking, Myanmar: CBSTP.
Archavanitkul, K. (1998). Trafficking in Children for Myanmar Anti-Trafficking Unit. (2010). Myanmar:
Labour Exploitation including Child Prostitution in Ministry of Home Affairs.
the Mekong Sub region. Myanmar: Mahidol University National Human Rights Commission. (2005). Volume I.
Institute for Population and Social Research, Anti- New Delhi: Institute of Social Sciences.
Trafficking Unit, Ministry of Home Affairs. Nepal Office of the National Rapporteur on Trafficking in
Calvez, V. (1998, July 7).Filipina dancers keep swinging Women and Children. (2008). Trafficking in persons
despite yen. Reuters. especially on women and children in Nepal, National
Cambodian Ministry of Social Affairs (CMS). (2009). Report (NNR) 2006-2007. Nepal: Office of the
Veterans and youth rehabilitation. Cambodia: CMS. National Rapporteur on Trafficking in Women and
China, International Labour Organization. (2009). The Children (ONRT).
Project to Prevent Trafficking in Girls and Young Squire, J., and Wijeratne, S. (2008). Sri Lanka research
Women for Labour Exploitation in China (2006-2008). report. Terre de homes, Foundation Lausanne (Tdh)
China: ILO. and South Asian Partnership Sri Lanka (SAPSRI).
China, Ministry of Public Security. (2009a). Joint report, Times of India. (2003, October 13). When victims become
National Review Workshop on the implementation of accused.
the National Plan of Action against trafficking crimes The National Working Committee (2004) on Children and
in women and children. Beijing: Ministry of Public Women. State Council. Country Paper against
Security. Trafficking in Women and Children. China: NWC.
China, Ministry of Public Security. (2009b, May). Press UNIAP. (2007). Human trafficking in Thailand: Data col-
release issued at Antitrafficking Campaign Press lation and integration of selected human trafficking
Conferences and during TV/online interviews. Ministry information, United Nations Inter-Agency Project on
of Public Security, China. Human Trafficking. Bangkok: UNIAP.
Coalition against Trafficking of Women (CATW-Asia US State Department. (2006). Human Rights Report.
Pacific). (1998). Fact Book on Global Sexual Washington. D.C: United States Department of State.
Exploitation. Newsletter 1, Winter. Wadhwa, S. (1998). For sale childhood. Outlook.
Terrorism in Asia: A Persistent
Challenge Sustained by Ideological, 10
Physical, and Criminal Enablers
Paul J. Smith
In subsequent months and years, India and achieving some sort of political goal. The US
other governments conducted numerous investi- Department of State offers a similar definition:
gations into the background of the Mumbai terrorism is “premeditated, politically motivated
attack. One major break occurred when a violence perpetrated against noncombatant tar-
Pakistani-American named David Headley was gets by subnational groups or clandestine agents,
captured at the Chicago airport. Officials would usually intended to influence an audience”
later determine that Headley had conducted sur- (Hudson 1999). Terrorists understand the power
veillance missions for the LeT (and by some of symbols, which is why they generally select
press accounts, its patron, the Pakistan Inter- their targets carefully. By focusing on a symbolic
Services Intelligence (ISI) directorate). Headley target—for example, a Western luxury hotel
would later tell the US and Indian investigators located in an Asian city—terrorists hope to gen-
that the LeT had trained him in various camps in erate a “high-profile impact on the public of their
the early 2000s and that, as of 2006, he began targeted enemy or enemies with their act of vio-
working directly for Sajid Majid, a high-ranking lence” despite the fact that they typically have
operations commander within LeT. He was limited resources (Hudson 1999).
trained in both surveillance and counter-surveil- In Asia, there is no single type of terrorism.
lance techniques, which allowed him to stay Some terrorism, such as the Maoist/Naxalite terror-
undetected in India while gathering information ism, is ideological and pursues a redistributive
on future targets (Burke 2011). Marxist agenda. Other types of terrorism are clearly
Overall, the Mumbai attack indicated LeT’s religious in nature (often reflecting an extreme or
desire to expand its jihadi agenda beyond Kashmir militant interpretation of a religion). Some terrorist
and into India and beyond, particularly with its groups have largely local agendas, while others
decision to include Jewish and Western targets subscribe to larger transnational goals. The follow-
(Tankel 2011). Second, the attack reinforced the ing section provides a survey of some major terror-
importance of the firearms assault as a supplement ist organizations or movements in Asia by
to the classic explosives methodology commonly subdividing the region into four subregions (by
associated with contemporary terrorism. As a descending level of severity): South Asia, Southeast
recent RAND study noted: “[The] firearms assault, Asia, Central Asia, and Northeast Asia.
while not as deadly as mass-casualty bombings,
can be an effective tactic in creating prolonged
chaos in an urban setting” (Rebasa and Blackwill 10.2.1 South Asia
2009). Third and perhaps most significant, the
Mumbai attack was an indicator that the global South Asia is emerging as the center of gravity
center of gravity for terrorism had shifted to Asia, for global terrorism. The three countries of this
particularly South Asia and to a lesser extent, subregion that have the greatest threats are, in
Southeast Asia. This is a significant change from descending order, Afghanistan, Pakistan, and
the era of the 1960s through the 1980s, when India. In 2010, Afghanistan experienced the
global terrorism was almost invariably linked to greatest number of terrorist attacks in the world
the Middle East or Europe and was sustained and (3,306), generating 3,202 fatalities (only Iraq had
nurtured by Cold War hostility and competition. a higher number of fatalities that year). Pakistan
follows closely behind Afghanistan, with 1,331
attacks and 2,150 fatalities. India comes in third,
10.2 Terrorism in Asia: A Brief with 860 attacks and 809 fatalities. The numbers
Survey wounded in Afghanistan, Pakistan, and India in
2010 were 4,847, 4,522, and 906, respectively
Terrorism is typically defined as violence threat- (National Counterterrorism Center 2011).
ened or actually committed by nonstate actors In the aftermath of 9/11 and subsequent global
against a state or its agencies for the purpose of concerns about terrorism, Afghanistan assumed
10 Terrorism in Asia: A Persistent Challenge Sustained by Ideological, Physical, and Criminal Enablers 149
great prominence and is the focus of one of Nations 2011). These disparate groups have been
NATO’s (in the form of the International Security linked to shocking levels of violence, particularly
Assistance Force, or ISAF) most significant mili- during the past 10 years. From 2000 to 2010,
tary mission. As of December 2010, more than Pakistan witnessed more than 9,387 deaths attrib-
2,270 foreign troops (including 1,440 US and uted to terrorist or insurgent attacks, while more
346 British soldiers) had been killed since the than 19,819 individuals were wounded in such
beginning of the Afghan war (IHS Jane’s 2011a). attacks (National Counterterrorism Center 2011).
Terrorist attacks are rife, and are generally asso- Of the various groups, Lashkar-e-Toiba is
ciated with the activities of the Afghan Taliban, viewed as a group that is adopting an increasingly
the Haqqani network and, to a lesser extent, global agenda, not only because of its role in the
Lashkar-e-Taiba, all of which are supported by 2008 Mumbai attacks, but also because of its
Pakistan (Tankel 2011). In April 2011, Admiral increasing presence around the world. Former
Mike Mullen, Chairman of the Joint Chiefs of head of US Pacific Command, Robert Willard,
Staff, broke diplomatic protocol by accusing testified in 2011 about LeT’s efforts to expand its
Pakistan’s Inter-Services Intelligence (ISI) direc- presence and influence throughout South Asia,
torate of having powerful links to militants (par- particularly Sri Lanka and the Maldives (Roul
ticularly those associated with the Haqqani 2010). Moreover, Willard noted that “LeT delib-
network), which are fighting American and other erately targets westerners and specifically engages
NATO forces (Khan 2011). coalition forces in Afghanistan.” (Willard 2011b).
In contrast with Afghanistan, Pakistan hosts a As a result, US Pacific Command is actively
veritable pantheon of insurgent or terrorist organi- building up state capacity in Nepal, Bangladesh,
zations—with active ones numbering more than Sri Lanka, Maldives, and other locations due to
40—ranging from sectarian groups to transnational evidence of growing LeT presence or influence
jihadi organizations. Among the more prominent (Willard 2011a). LeT also has linkages to Europe
are the Paikistani Taliban (Tehrik-i-Taliban), and North America. When asked about allega-
Lashkar-e-Toiba (LeT), Jaish-e-Mohammed, tions of Pakistan’s linkages to LeT, Willard
Lashkar-e-Jhangvi (LJ), Sipah-e-Sahaba Pakistan responded that the question of Pakistan’s support
(SSP), Jammu and Kashmir Liberation Front, of LeT (particularly via its Inter-Services
among many others. Tehrik-i-Taliban (TTP) was Intelligence directorate) was a “very sensitive
established in 2007 by a shura of 40 senior Taliban one” and the subject “continues to be a discus-
leaders, who envisioned that the TTP would act as sion item between the United States government
an umbrella organization. Based in the FATA and and the Pakistan government in Islamabad”(Willard
key districts of the North-West Frontier Province 2011a).
(NWFP), the TTP seeks to, among other things, Like Pakistan, India is home to a range of ter-
fight against NATO forces in Afghanistan and per- rorist groups and movements. Traditionally, much
form “defensive jihad against the Pakistan of the violence has been associated, one way or
army”(Abbas 2008). Meanwhile, Lashkar-e- another, with Jammu and Kashmir, but an increas-
Jhangvi acts as the “lynchpin of the alignment ing portion is also related to insurgencies in
between al-Qaeda, the Pakistani Taliban and sec- India’s northeastern states. For example, in 2008,
tarian groups”(International Crisis Group 2009b). over 404 civilians were killed in militant violence
The United Nations Consolidated List estab- in India’s northeastern region (Srivastava 2009).
lished and maintained by the 1267 Committee Much of the violence is linked to smaller insur-
with respect to Al-Qaeda, Osama bin Laden, and gent groups in Assam, particularly as the more
the Taliban (hereafter the “1267 Committee List”) established United Liberation Front of Assam
lists four South Asian organizations, all of which (ULFA) has become weaker (Srivastava 2009).
are based in or have a substantial presence in In addition, India is plagued by the Maoist
Pakistan: Jaish-I-Mohammed , Lashkar-e-Tayyiba, (Naxalite) insurgency, which has now spread to
Lashkar I Jhangvi, and Harakat-Ul Jihad (United 22 out of 28 states in India (Srivastava 2009).
150 P.J. Smith
Between 2008 and 2010, more than 2,600 civil- as the center for some of the most violent terrorism
ian and security force personnel were killed by perpetrated by the Liberation Tigers of Tiger
Naxal-related violence in India (Press Trust of Eelam (LTTE). However, with that group having
India 2011). The Naxal movement gets its name been defeated in 2009, the threat has largely dissi-
from an armed uprising that occurred in Naxalbari, pated, although there are concerns about an LTTE
West Bengal in 1967. Adopting the teachings of revival within the very large and globally dispersed
Mao Zedong (as they interpret them), the Maoists ethnic Tamil diaspora.
regularly target “class enemies, petty bourgeois,
police informers” either by murder or by sentenc-
ing them to various penalties through their 10.2.2 Southeast Asia
“People’s Court”(Asian Centre for Human Rights
2006). However, the Maoists are increasingly Southeast Asia is the subregion with the second
facing a dilemma: the more they rely on terrorism most severe level of terrorism. The three most
to force their will on the government, the more significantly affected countries are Thailand with
they risk alienating the local population on whose 418 attacks and 265 fatalities, the Philippines
support the insurgency is dependent (Srivastava with 260 attacks and 176 fatalities, and Indonesia
2009). Overall, terrorism has been less of a chal- with 18 attacks and 12 fatalities. The number of
lenge in India compared to Pakistan; neverthe- wounded in Thailand, Philippines, and Indonesia
less, more than 6,896 individuals have died in during 2010 was 736, 290, and 25, respectively
India as a result of terrorist or insurgent attacks; (National Counterterrorism Center 2011).
another 13,951 have been wounded since 2000 Officially, the 1267 Committee lists three
(National Counterterrorism Center 2011). groups in Southeast Asia: Jemaah Islamiyah, the
Bangladesh was once considered a country Abu Sayyaf Group, and the Rajah Solaiman
where terrorism was in a state of ascendancy, par- Movement. Among these various groups, Jemaah
ticularly with the activities of Jamaat ul-Muja- Islamiyah (JI) stands out as having had the most
hideen Bangladesh (JMB) and an array of smaller influence (and destructive impact, particularly in
groups. JMB was notable for its attack on August Indonesia). On October 2002, JI conducted its
17, 2005, in which the group executed 459 near- most lethal attack in its history: an attack on the
simultaneous bombings that killed 2 and injured tourist destination of Bali. Simultaneous bomb-
100 (IHS Jane’s 2010a). However, the govern- ings killed more than 200 people (mostly tour-
ment has taken decisive measures—including ists). Later, Indonesian police arrested Abu Bakar
specific measures against the JMB—to mitigate Bashir, who was subsequently convicted but later
terrorism in the country. Between 2005 and 2010, released (Indonesian officials subsequently con-
for example, only three civilians were killed in victed Bashir in 2011, following a third prosecu-
attacks linked to Islamist militants. This contrasts tion). In August 2003, a JI suicide bomber
starkly with the number killed by Left Wing attacked the JW Marriott Hotel in Jakarta, which
Extremists (from 2005 to 2010, there were 50 killed 11 individuals. In October 2003, Indonesian
casualties—including 46 terrorists—associated prosecutors convicted Imam Samudra for his role
with left wing extremism). Bangladesh hosts a in masterminding the Bali bombings. In October
plethora of leftist militant groups, including the 2005, JI conducted its second attack in Bali, by
Purba Banglar Communist Party, the PBCP deploying 3 suicide bombers; over 20 people,
(Janajuddha), PBCP (M-L Red Flag), PBCP mostly tourists, were killed. In September 2004,
(M-L Communist War), Biplabi Communist JI bombed the Australian embassy, an attack that
Party, among others (South Asian Terrorism killed 11 and injured another 200.
Portal 2011). JI’s bombing successes have, paradoxically,
Other countries in South Asia have either com- led to its diminution as a powerful organization.
paratively or substantially reduced risk in terms of Aggressive policing by Indonesia, particularly its
terrorism. Sri Lanka, for instance, was once known Detachment 88, has resulted in more than 450
10 Terrorism in Asia: A Persistent Challenge Sustained by Ideological, Physical, and Criminal Enablers 151
arrests (and 250 convictions) of JI members. This created as a result of disagreements between
has spurred divisions and disputes within the Bashir and other members of the Majelis
organization, resulting in at least two main wings: Mujahidin Indonesia (MMI). JAT was designed
the Hambali wing and the Mainstream wing to cast off some of the political baggage that JI
(Abuza 2010). The Hambali wing—once led by had accrued (International Crisis Group 2010).
Noordin Top prior to his demise—having re-cast Bashir envisioned that the new organization
itself as “al-Qaeda in the Malay Archipelago” would focus on public outreach and education.
sought to engage in robust attacks against Western Its official goal was to “revitalize the Islamic
targets, while the Mainstream wing sought to movement in support of full victory for the
maintain a lower profile (to fend off police actions struggle of the Indonesian faithful”(International
and arrests) and focus on sectarian conflicts Crisis Group 2010). Similar to JI, JAT followed
within Indonesia’s outer islands (Abuza 2010). strict Salafist teachings, including those of
On September 17, 2009, Indonesian police Abdullah Azzam and Sayid Qutb.
held a news conference in Jakarta in which they Despite the fact that it is only 4 years old, JAT
announced the death of Noordin Muhammad has become influential in Indonesia. However,
Top, who had been killed in a police assault on the organization ran afoul with Indonesian
the safe house where he and others had been hid- authorities when a training camp in Aceh, alleg-
ing. Top led a Jemaah Islamiyah splinter group edly run by JAT, was discovered (International
and was known for his bomb-making skills. Crisis Group 2010). The discovery of the camp
Having evaded police for years, Top was linked appeared to undermine previous assertions by
to a series of violent attacks, including suicide JAT leaders that the group was eschewing vio-
bombings against the Australian Embassy in lence. In March 2011, during the trial of Abu
Jakarta (2004), three Bali cafes (2005) and the Bakar Bashir, Abdul Haris, the leader of JAT’s
more recent attacks against the J.W. Marriott and Jakarta chapter, revealed that during a meeting at a
Ritz-Carlton hotels (July 2009) (Mydans 2009). restaurant, Bashir requested that Haris and others
Many observers noted that, notwithstanding help raise money for a military training camp in
the elimination of Top, militancy in Southeast Aceh Besar (BBC Monitoring Asia Pacific-
Asia was not necessarily in decline. The Jakarta- Political 2011).
based newspaper Republika, in an editorial, Overall, effective law enforcement actions by
warned that the ideology of radicalism devel- the Indonesian Government have greatly dimin-
oped by Top and others like him “continues to ished JI’s power and most recently its successor
grow among certain groups in our society” JAT organization. However, the threat of violence
(Jakarta Republika 2009). Indonesia, as the larg- continues unabated in Indonesia; for instance, on
est Muslim-majority country in the world, is April 22, 2011, Indonesian police disrupted a
often celebrated for its secular and relatively bombing plot intended to be timed with the Easter
liberal democracy; simultaneously, however, the holiday. Five bombs, containing in aggregate
country harbors a significant level of support for over 150 kg of explosives, had been buried next
radical Islamist ideologies and moreover, during to a gas pipeline located beside Christ Cathedral
the past three legislative elections, “around 10% at Serpong, West Jakarta. Police were uncertain if
of voters have chosen to support radical Islamist the plot was designed by the country’s two main
parties—a higher percentage than in Pakistan” jihadist groups (JI and JAT), or one of the newer,
(Barton 2009). smaller groups (Alford 2011).
As JI has been weakened by effective Police concern about the smaller organiza-
Indonesian law enforcement, it has retreated tions is well-founded, particularly as a number of
into a somewhat latent mode. In some cases, them have adopted violent tactics as their primary
leaders from JI have moved to other groups. raison d’etre. Such groups include the Fahrul
Abu Bakar Bashir founded a new group, Jama’ah Tanjung Group in Bandung, which was respon-
Ansharut Tauhid (JAT), in 2008. The JAT was sible for the March 15, 2010 attack on a police
152 P.J. Smith
station and the assassination of a police constable. sides agreed to establish an 18-month timeframe
Another is the Tim Ightiyalat (from Klaten, for the talks.
Central Java), responsible for a “crude bombing In the southern Philippines, the Moro Islamic
campaign against police posts, churches, and a Liberation Front (MILF) is behind one of the
few mosques” (International Crisis Group 2011a). country’s most significant insurgencies (al-
A third is the Medan Group, responsible for the though Manila is keen to avoid labeling the
robbery of a Medan branch of the CIMB bank in MILF as a terrorist organization, notwithstand-
August 2010 (International Crisis Group 2011a). ing the fact that the MILF has been known to
The Philippines contains the other two 1267 host foreign jihadis within territory that it con-
Committee listed groups: Abu Sayyaf Group and trols) (International Crisis Group 2011b). The
Rajah Solaiman Movement (Philippines). Abu Philippine Government has been engaged in pro-
Sayyaf Group split off from the Moro National tracted negotiations with MILF, in an attempt to
Liberation Front (one of two major separatist secure a sustainable peace agreement. One key
organizations in the southern Philippines) in obstacle has been certain MILF hardliners, in-
1991. The group’s founder, Abdurajak Janjalani cluding Ameril Ombra Kato who recently broke
served as a fighter in the anti-Soviet resistance off with MILF to form (along with thousands of
fight in Afghanistan during the 1980s. The his followers) the Bangsamoro Islamic Freedom
group’s first attack occurred in 1991, when an Fighters (BIFF) (Malinao 2011). Another obsta-
ASG operative threw a grenade at two American cle is corruption in the existing Autonomous
evangelists, killing both (Council on Foreign Region of Muslim Mindanao, which is used as
Relations 2011). In subsequent years, the group “ammunition by critics to argue against any plan
conducted a series of kidnappings involving that would result in an expansion of its powers or
Filipino nationals and international tourists territorial reach” (International Crisis Group
(Council on Foreign Relations 2011). 2011b).
The Rajah Solaiman Movement was founded In addition to listed terrorist groups, Southeast
by Ahmad Santos in the late 1990s, following his Asia also hosts a number of second-tier or next
conversion to Islam. The Rajah Solaiman shares generation terrorist groups or independent individ-
similar goals with other Islamist organizations uals. For example, in Southern Thailand, anti-gov-
and is believed to have formed an alliance ernment insurgent violence (resulting in more than
between two Al-Qaeda linked organizations: 3,300 deaths) has been conducted by a nebulous
ASG and JI (BBC News 2005). In addition, mem- collection of individuals and groups, the most
bers of Rajah Solaiman allegedly conducted one prominent of which appear to be the BRN-
of Southeast Asia’s most lethal attacks: the 2004 Coordinate (Barison Revolusi National-Coordinate)
sinking of a ferry near Manila that killed more and the Patani United Liberation Organization
than 100 people (BBC News 2005). (PULO) (IHS Jane’s 2008). Currently, the most
In addition to Islamist groups, the Philippines violent region of Southeast Asia, from a terrorism
also hosts a major Marxist group, the New casualty perspective, is southern Thailand. Since
People’s Army (NPA). As the armed wing of the 2004, nearly 4,000 people have lost their lives in
Communist Party of the Philippines, the New violence perpetrated in just three Muslim-majority
People’s Army is a classic communist insurgency provinces, Yala, Pattani, and Narathiwat (roughly
that would seem—like the Maoists in India—to two-thirds of the casualties have been Muslims)
be somewhat of an anachronism during the post (IHS Jane’s 2011e).
Cold War era. Nevertheless, the group is quite Similarly, Indonesia hosts a number of groups
active and boasts more than 8,500 troops (IHS that do not receive the same spotlight as that
Jane’s 2011b). Recently, following a 7-year devoted to Jemaah Islamiyah. Some of these sec-
impasse, the CPP-NPA and the Philippine ond-tier groups include (or have included) Ring
Government agreed to resume negotiations in Banten (an offshoot of the historically rooted Darul
Oslo, Norway. At their February meeting, both Islam movement), Mujahidin KOMPAK, Jama’ah
10 Terrorism in Asia: A Persistent Challenge Sustained by Ideological, Physical, and Criminal Enablers 153
Tauhid wal Jihad, Hizb-ul-Tahrir Indonesia (HTI), in Central Asia is Hizb ut-Tahrir (HuT). The HuT
among others (Chalk 2009; International Crisis is considered a major threat within Uzbekistan,
Group 2009a). Some of these groups have strong although the group generally does not conduct
(current or former) affiliation with JI, while other violent attacks. Instead, it fights its own “war of
groups act independently or pursue different goals. ideas” by disseminating propaganda that urges
In the Philippines, a previously unknown group, people to return to “an Islamic way of life” (IHS
the Bansamoro National Liberation Army, recently Jane’s 2011d). The HuT advocates the creation of
claimed responsibility for a bomb attack in late a central Asian caliphate. In Uzbekistan, mere
September 2009, which killed two American sol- possession of HuT literature is a criminal offense,
diers and a Filipino marine (Jacinto 2009). with potential jail terms as long as 10 years. In
Tajikistan, thousands of HuT followers have been
arrested and imprisoned (IHS Jane’s 2011d).
10.2.3 Central Asia In Kazakhstan, terrorism appears to be much
less of a challenge compared to its neighbors,
Central Asia is the third most serious subregion in particularly after the Kazakhstan Government
terms of terrorism, although comparatively, its sit- declared 13 organizations, including Al Qaeda
uation is much more benign when compared to and the Islamic Movement of Uzbekistan, to be
South or Southeast Asia. Tajikistan reported the terrorist or extremist organizations, thus prohibit-
most serious attack in 2010 (1 attack causing 2 ing all of their activities within the country. To
fatalities, wounding 28), while Kyrgyzstan re- demonstrate its determination to enforce the ban,
ported 1 attack (no fatalities, 7 wounded) (National the Kazakhstan Government sentenced an activ-
Counterterrorism Center 2011). According to the ist to 2 years in jail for his “involvement in the
NCTC database, Kazakhstan, Uzbekistan, and operations of the Hizb-ut-Tahrir-al-Islami reli-
Turkmenistan did not report any terrorism inci- gious association”(Interfax 2011). A month ear-
dents in 2010. Nevertheless, there remains at least lier, the same court sentenced another two men
a latent threat of terrorism. for varying jail terms for their membership in the
The UN 1267 Committee lists only one terror- Hizb-ut-Tahrir organization (Interfax 2011).
ist group based in—or with substantial presence
in or linkage to—Central Asia: Islamic Movement
of Uzbekistan, a group that was much more pow- 10.2.4 Northeast Asia
erful in the 1990s compared to today. In 1999 and
2000, the IMU was accused of launching attacks Of the four subregions of Asia, Northeast Asia
into Uzbekistan and Kyrgyzstan from the Ferghana appears to have the least amount of threat.
Valley. However, US operations in Afghanistan, According to the NCTC database, China expe-
following the 9/11 attacks, led to the destruction rienced the greatest number of terrorist attacks
of several key IMU bases. From that time, the during 2010 (1 attack with 6 deaths and 15
IMU, or its remnants, regrouped in Pakistan, espe- wounded) (National Counterterrorism Center
cially within the tribal lands of the country’s 2011). The other major countries in the region—
northwest region. Later, the group spawned an including Japan, South Korea, Taiwan, North
offshoot organization, the Islamic Jihad Union Korea, and Mongolia—have no recorded inci-
(IJU), which has maintained a presence in North dents. This was not always the case, however.
Waziristan in Pakistan’s Federally Administered North Korea has played the role of state sponsor
Tribal Areas (FATA) (IHS Jane’s 2010b). of terrorism, For example, on November 28,
Both the IMU and IJU threaten not only 1987, two North Korean agents blew up Korean
Uzbekistan, but also neighboring Kyrgyzstan and Air Flight 858, and then swallowed cyanide cap-
Tajikistan, particularly as these countries have sules (although only one actually died). In Japan,
less governance capacity and less ability to con- the Japanese Red Army (Sekigun) was prominent
trol unauthorized border crossings. Another group during the 1960s and 1970s. In the 1990s, the
154 P.J. Smith
these is the role of ideology. Terrorism is, after Akbar Ahmed points out, be ‘used by extremists’
all, violence committed as part of a larger cam- to ‘reinforce this feeling that all Muslims are
paign to achieve political ends. As would be under attack’” (Ramakrishna 2005). Imam
expected, there is no single ideological driver that Samudra justified the 2002 Bali bombing partly
pervades such a vast region. In some countries on the rationale that the USA and its allies had
(such as the Philippines or Thailand), local insur- bombed innocent Muslims in Afghanistan in
gencies have an Islamic character—and some- 2001 (Bin Hassan 2007). In addition, the bomb-
times even deploy jihadi ideas—but their struggle ing targets (Paddy’s Bar and Sari Club) were
is largely local in nature: “The minority groups “places of vice” that had “no value in Islam”(Bin
involved in these struggles fight for separation or Hassan 2007).
autonomy from the existing political regimes that In some cases, the local–global nexus is facili-
they perceive to be guilty of imposing discrimi- tated by geographical cross-pollination of ideas
natory policies” (Helfstein 2008). or informal mutual cooperation agreements. For
Yet even these movements can be heavily example, the arrest of Umar Patek in Pakistan
influenced by international trends. In Southern (Patek was one of the top militants responsible
Thailand, although insurgent violence is perhaps for the 2002 Bali bombing in Indonesia) sug-
more genuinely “local” than most of the region’s gested some degree of convergence between
other insurgencies, it is also apparent that militant Pakistan militants and their Indonesian counter-
groups are increasingly invoking global jihadi parts, although the exact nature and extent are
narratives and images—including referring to uncertain. One theory posits that JI possibly
southern Thailand as Dar al-Harb (House of wanted to establish a new training facility in the
War)—as part of their recruitment efforts Federal Administered Tribal Areas (FATA) in
(International Crisis Group 2009c). As Thitinan much the same way that it had previously estab-
Pongsudhirak has argued: “The heightened aware- lished an overseas training facility in the southern
ness of Muslim identity worldwide in the after- Philippines, under the aegis of the Moro Islamic
math of September 11 provides a context for local Liberation Front (MILF) (Abuza 2011). Pakistan’s
Muslim grievances in Thailand’s deep south” potential role in this regard would not be surpris-
(Pongsudhirak 2007). However, at the same time, ing; the North Waziristan region is viewed by
it is important to draw a distinction between Western intelligence and police officials as a key
“Muslim grievances” and ultimate objectives, enabler for plots in Europe, North America, and
which may diverge substantially with organiza- other parts of the world (Keaten 2011).
tions with more global agendas. An editorial in a In addition, many contemporary movements
prominent English-language Thai newspaper may have extensive histories: in Indonesia,
stated that Malay separatists are not interested in Jemaah Islamiyah reinvigorated some of the same
taking over the Thai state (in contrast with the for- aims and themes of an earlier (1950s era) move-
mer Communist Party of Thailand); instead, the ment known as Darul Islam, except that JI’s links
Malays “just want their homeland back” (The to global organizations have helped the organiza-
Nation [Thailand] 2011). tion cultivate both a local and international
In other cases, the agenda of a particular group agenda (in contrast with Darul Islam’s more local
may expand along a spectrum of motives, encom- orientation) (Barton 2009). In South Asia, the
passing both the local and the global. In these unresolved status of Jammu and Kashmir fosters
cases, the persistent grievance narrative may a pretext for substate militancy, some of which is
relate to the abuse of Muslims around the world. supported clandestinely by official agencies.
As Kumar Ramakrishna has noted: “The suffer- Pakistan’s security agencies, including the Inter
ing of Muslims anywhere, especially where the Services Intelligence (ISI) directorate have pro-
United States is directly involved—as in the vided funding for substate insurgent groups,
instance of collateral civilian casualties in Iraq including those with an active global agenda,
and Afghanistan—can, as liberal Muslim scholar since the late 1940s (Ganguly and Kapur 2010).
156 P.J. Smith
Non-Islamist insurgency organizations thrive illegal firearms are linked to various types of
on very different ideological narratives. In India, criminal activities (IHS Jane’s 2010a). In
Maoists thrive on rural desperation and frustra- Cambodia, a surfeit of small arms—a portion of
tion with perceived government incompetence. which is held by demobilized soldiers—is viewed
In the Philippines, the New People’s Army (NPA) as a major contributor to rampant gun crimes in
has thrived on themes of unfair distribution of the country (IHS Jane’s 2011c). In the Philippines,
wealth, government failures to protect the rights authorities recently discovered a “bomb factory”
of the poor and similar grievances linked to ineq- in a cave in Davao, which was being used and
uities (both real and perceived) (Ferrer 2007). maintained by Communist rebels. In addition,
police discovered military-style arms, including
two anti-armor mines, four anti-personnel mines,
10.4 Asia’s Functional Enabling 700 containers of liquid explosives, among other
Environment items (Romero 2011).
In some cases, arms will seep from the state-
Complementing the ideological enabling environ- realm to the non-state realm as a result of corrup-
ment in Asia is the functional enabling environ- tion, criminality, or negligence. In 2003, for
ment. This refers to physical, institutional, or example, a senior Armed Forces of the Philippines
geographical enablers that allow terrorism to (AFP) officer admitted that over 8,000 army
flourish (Ramakrishna 2005). For Asia, six func- weapons had “gone missing” in Sulu Province
tional enablers in particular deserve special focus. over a 14-year period; many of these weapons
First, Asia’s vast, unique, and sometimes ended up in the hands of MILF or ASG operatives
impenetrable geography provides an enabling (Capie 2005). In August 2010, Defense Secretary
factor for terrorism. Porous borders facilitate Voltaire Gazmin admitted that the AFP had pro-
clandestine border-crossings for militants or their vided weapons to the Ampatuan clan of
supporters. In addition, Asia’s archipelagic geog- Maguindanao Province, which was reportedly
raphy creates almost inevitable maritime border assisting the government in fighting the Moro
porosity, which in turn aids violent nonstate Islamic Liberation Front (MILF), in addition to
actors. This same border environment also facili- various other groups that were supported as part
tates transnational crime, which can in turn sup- of the government’s fight against the New People’s
port transnational terrorism. Army. Many of the weapons—typically small
In South Asia, porous borders between arms—are unaccounted for, while at least one of
Bangladesh and India’s northeastern region have the groups supplied with arms by the government
been linked to a convergence of agendas and (the Kuratong Baleleng group) has recently
operations among Islamist groups based in Assam “evolved” into a criminal syndicate group engaged
and Bangladesh. Ease of entry into the region has in bank robbery, kidnapping, drug smuggling, and
reportedly provided functional space for other similar activities (Depasupil 2010).
Pakistan’s Inter-Services Intelligence (ISI) direc- A third functional enabler is weak, corrupt, or
torate, which has been accused of attempting to ineffective governance. Effective governance
destabilize the region (Kumar 2011). can include a government’s ability or willing-
The second functional enabler for terrorism is ness to address legitimate grievances or injus-
the wide availability of arms and explosives. Just tices that are uniquely “local” and often
as the region’s porous borders allow infiltration historically rooted. Effective governance also
or exfiltration of militants, they also facilitate the implies minimal corruption, a factor that can
smuggling of small arms and light weapons. India influence terrorism trends in unexpected ways.
and Pakistan are estimated to have roughly 40 First, widespread corruption typically accompa-
million and 20 million illegal firearms circulating nies a dismissive attitude toward rule of law,
within their populations, respectively (IHS Jane’s which reduces the institutional capacity of par-
2010a). In Pakistan alone, an estimated 400,000 ticular governments. Second, corruption under-
10 Terrorism in Asia: A Persistent Challenge Sustained by Ideological, Physical, and Criminal Enablers 157
mines or delegitimizes confidence in government Daily Online 2009). According to one assessment,
policies because of perceptions that impartiality Southeast Asian jihadist websites are “equally, if
or justice can be “bought” by opposing interest not more, focused on global jihadist issues than
groups (Transparency International 2008). they are on local or regional issues” (Brachman
A corollary to good governance is healthy and 2009). These websites act as an electronic foun-
robust state capacity. Weak states are often pre- dation that allows the “promulgation and transla-
sumed to be more vulnerable to terrorist activities tion of global jihadist media and writings”
and groups, particularly as the latter may seek to throughout the region (Brachman 2009).
take advantage of state weakness (including a Moreover, the American newspaper columnist
particular government’s inability to enforce laws, Thomas Friedman has characterized the ability of
to institute border controls, to have effective con- small groups to gather and train via the Internet as
trol over parts of its territory, to monitor financial a “virtual Afghanistan”—a loose network of
transactions, and so on). A US Congressional Internet websites, prayer associations and mosques
Research Service study assessed that “terrorists (both electronic and real) that “recruit, inspire and
can benefit from lax or non-existent law enforce- train young Muslims to kill without any formal
ment in these [weak and failing] states to partici- orders from Al Qaeda” (Friedman 2009).
pate in illicit economic activities to finance their A fifth functional enabler is the growth and
operations and ease their access to weapons and spread of suicide techniques throughout Asia.
other equipment” (Wyler 2008). Moreover, the Inspired by the success of Hezbollah in deploying
issue can be even more complicated. For exam- suicide bombing tactics in Beirut in the early
ple, a 2003 study conducted for the US Central 1980s, the leader of the Liberation Tigers of Tamil
Intelligence Agency differentiated between Eelam (LTTE) decided to deploy such tactics in
“caves” (failed states where governance is inef- Sri Lanka. “If we conduct Black Tiger [suicide]
fective or nonexistent) and “condos” (states that operations,” Velupillai Prabhakaran reportedly
enjoy modern infrastructure, which allows for stated, “We can shorten the suffering of the people
easy transit, communication and access to fund- and achieve Tamil Eelam [Tamil Homeland] in a
ing) (Wyler 2008). Another conception posits shorter period of time.” (Smith 2008). From the
that the “quasi” state—the state which is reason- mid-1980s until the group’s demise in Sri Lanka
ably functional, but weaker than a developed in 2009, the LTTE conducted more than 160 sui-
country—is more dangerous because it provides cide bombings, including the May 1991 assassi-
such enabling infrastructures (Menkhaus 2003). nation of former Indian Prime Minister Rajiv
Pakistan and Indonesia might qualify as “con- Gandhi and the 1993 assassination of Sri Lankan
dos” or quasi states, because of their reasonably President Ranasinghe Premadasa.
modern infrastructure and connectivity to the Today, however, Pakistan is ground zero for
global economic system. suicide terrorism in South Asia; in 2010 alone,
A fourth functional enabler is the pervasive over 135 suicide bombing attacks were recorded
role of the Internet. The Internet has emerged as a (resulting in 2219 deaths and 6034 wounded)
major functional enabler for terrorism during the (National Counterterrorism Center 2011).
past decade. A recent British Government report Terhrik-e-Taliban (TTP) is particularly notorious
found that the Internet is one of the few “unregu- for its use of suicide bombing tactics in Pakistan.
lated spaces where radicalization is able to take In January 2011, the US State Department desig-
place,” which also serves as a platform where nated TTP leader Qari Hussain under Executive
individuals can find “like-minded individuals and Order 13224 (US designation and financial block-
groups” (House of Commons 2012). In Southeast ing of terrorists and terrorist organizations).
Asia, jihadist websites are an increasingly com- Hussain was described as one of the TTP’s “top
mon phenomenon. The number of extremist web- lieutenants” who organized the group’s camps
sites (including individual blogs) in the region is that trained the TTP’s cadre of suicide bombers
estimated to range between 150 and 200 (China (US State Department 2011).
158 P.J. Smith
In Southeast Asia, Indonesia has emerged as rate during 2009–2010 was 5.6% (Business
the center for suicide terrorism; the country has Recorder 2011). Unofficial estimates place the
witnessed at least four major suicide attacks since rate as high as 25% (Right Vision News 2011).
2003, causing at least 48 deaths in total. Although Many who have jobs are just marginally better
such methods are not totally new to the region, off; 84.6% of the working population in Pakistan
their most recent appearance clearly derives from earns less than $2 a day (The Nation [Pakistan]
operational (or ideational) linkages between 2011a, b). In Indonesia, an estimated 7.14% of
Southeast Asian groups and their South Asian or the workforce (8.32 million Indonesians) is
Middle Eastern counterparts (Dale 1988). In unemployed, according to government statistics
2009, the youngest child of a prominent JI leader (Antara 2011).
posted a justification of suicide bombings on a In India, poverty and unemployment are seen
jihadist website. The statement reasoned that as as enabling factors that sustain the Naxalite
long as these “acts of martyrdom” are conducted (Maoist) movement. A study commissioned by
in a sincere manner and in accordance with the the Indian government recently found that “cre-
demands of Shariah, then these bombers will “be ation of employment opportunities, immediate
martyrs on the path of Allah” (Muslim Daily land reforms, and good governance” could be an
2009). Some scholars predict that suicide bomb- effective antidote to the continued appeal and
ing methods may spread and become more fre- spread of Naxalism (Sharma 2011). However,
quent in such countries as Thailand and the others have voiced skepticism about the pre-
Philippines (Dolnik 2007). sumed nexus between economic development
A sixth functional enabler might be described as and terrorism. Ajai Sahni, an Indian-based terror-
the collective effects and influences of poverty, ism analyst, argues that historically “no country
unemployment, and disruptive globalization. In has ever ‘out-developed’ an ongoing insurgency
2004, the US National Intelligence Council issued or terrorist movement” (Sahni 2010).
a future assessment of the global security environ-
ment in which it described globalization (defined
as increasing flows of trade, people and ideas) as an 10.5 The Terrorism–Crime Nexus
“overarching ‘mega-trend,’ a force so ubiquitous
that it will substantially shape all the other major Another major functional enabler for terrorism is
trends in the world of 2020” (National Intelligence crime. Although terrorism itself is typically
Council 2004). Such force can promote extreme classified by most countries as a crime, it is often
insecurity, particularly as it is accompanied by dependent on an array of “supportive crimes”
“large-scale social, economic, and aesthetic disrup- that allows it to achieve certain logistical objec-
tion” (Newman 2006). Moreover, socially conser- tives, particularly funding. In some cases, terror-
vative societies are forced to contend with an ist groups will develop their own “in house”
“invasion of images that evoke outrage and disgust specialists—passport forgers, for instance—who
as much as envy in the hearts of those who are provide key logistical services; in other cases,
exposed to them”(Newman 2006). terrorists may forge alliances with criminal
The same National Intelligence Council report groups that specialize in certain operational spe-
warned that globalization is likely to produce cialties: “criminal and terrorist groups regularly
“winners” and “those left behind” (National engage in strategic alliances to provide goods or
Intelligence Council 2004). One indicator of services”(Makarenko 2005).
being left behind is rampant unemployment in In his recent testimony to the US Congress,
many parts of the developing world. For example, James Clapper, Director of National Intelligence,
in Afghanistan and Pakistan, unemployment is stated: “terrorists and insurgents will turn to
rife. In Afghanistan, unemployment has been crime to generate funding and acquire logistical
estimated to range between 30 and 50% (Rezaie support from criminals in part because of US and
2011). In Pakistan, the official unemployment Western success in attacking other sources of
10 Terrorism in Asia: A Persistent Challenge Sustained by Ideological, Physical, and Criminal Enablers 159
their funding” (Clapper 2011). In 2010, a Asia, JI members robbed a gold and jewelry
Congressional Research Service report warned store in West Java in August 2002, in order to
that potential links between crime and terrorism raise money for its imminent attack in Bali that
could “increase US vulnerability to attack by ter- year (Jablonski and Dutton 2004). JI has justified
rorist groups with enhanced criminal capabilities such activities by invoking the concept of fa’i,
and financial resources” (Rollins and Wyler 2010). which permits robbing non-believers as a means
Perhaps the most important crime associated of raising cash for jihad (Croissant and Barlow
with terrorism is money laundering, which is 2007). Imam Samudra encouraged his followers
involved not only with sourcing of funds, but also to learn new and sophisticated forms of robbery,
their distribution. In the months following the 9/11 such as computer hacking and carding (carding,
attacks in the United States, US officials began to a form of hacking, involves breaking a credit
focus on the financial dimensions of Al Qaeda. card code which allows the user access to the
A number of investigations concluded that, not- credit facility) (Bin Hassan 2007). Moreover, he
withstanding Osama Bin Laden’s personal wealth, urged that his followers, armed with their newly
Al Qaeda and similar groups had access to a steady acquired hacking and carding skills, direct their
stream of funding, which emanated from the efforts solely against Americans “as part of
Middle East flowing under the imprimatur of char- Muslims’ fight against America’s imperialism,
itable contributions. Indeed, numerous charities in arrogance, and oppression” (Bin Hassan 2007).
the United States were prosecuted under federal In addition to JI, other groups in Asia have
money laundering statutes due to their diversion of turned to classic robbery to raise funds. In late
funds to terrorist organizations. 2009 and 2010, Jamaah Ansharut Tauhid (JAT)
One country in particular, Saudi Arabia, was conducted four robberies that netted the organi-
highlighted as a key provider of charitable funds zation more than $80,000 (Abuza 2010). In
that were being accessed by terrorist groups. Malaysia, the group Kumpulun Mujahideen
Internal US Government assessments revealed, Malaysia (later renamed Kumpulan Militan
as late as 2010, that “donors in Saudi Arabia con- Malaysia or KMM) robbed a Hong Leong Bank
stitute the most significant source of funding to branch in Petaling Jaya, Selangor in December
Sunni terrorists groups worldwide” (Lichtblau 2000; its success emboldened the group’s mem-
and Schmitt 2010). In an addition to supporting bers to attempt another robbery at the Southern
LeT in South Asia, Saudi Arabian donors have Bank branch in Jalan Gasing, Petaling Jaya in
also been known to provide financial support to May 2001, although this act was unsuccessful
other groups, particularly those in Southeast after one of the robbers was shot dead and the
Asia. Having received funds, the organization others were arrested (Noor 2007).
must transfer or hold such assets, through formal In 2009, the Reserve Bank of India circulated
banking instruments (such as using a fictitious a notice to all banks in Kerala to increase security
name associated with a bank account) or infor- following intelligence reports that the now-inac-
mal means, such as relying on the hawala system, tive LTTE was planning to conduct a series of
to transfer money. bank robberies in order to raise funds (Press Trust
If an Asian terrorist organization cannot of India 2009). In June 2010, Pakistani police
access funds from gifts and charitable organiza- killed one and captured three activists of the
tions, it may have to take matters into its own Lashkar-e-Jhangvi (LJ) group after they con-
hands by, among other things, robbing banks. ducted a bank robbery in Organi Town. The four
This is neither surprising nor historically unique. men, armed with pistols and hand grenades, held
Groups as diverse as the Irish Republican Army, 20 employees of the bank hostage for 90 min.
the Italian Red Brigades and the German Red They were able to take out Rs. 2.7 million prior to
Army Faction regularly, or at certain times, being captured by Pakistan’s Rangers and its
engaged in bank robbery as a means of acquiring Special Investigation Unit (SIU) (BBC Monitoring
badly needed cash (Smith 2008). In Southeast Asia Pacific-Political 2010).
160 P.J. Smith
Kidnapping is another way that some Asia- there are elements of the LTTE and the Tamil
based terrorist groups have raised money. Perhaps Tigers on board this vessel” (Coyne 2010). In
most notorious for this activity is the Abu Sayyaf 2009, Sri Lankan Defence Ministry officials
Group (ASG) in the Philippines, which has been identified Ravi Shankar Kanagarajah (alias
linked to a kidnapping spree in that country since “Shangili”) as a key LTTE arms and human
the late 1990s. Some of its more prominent smuggler, who owned three ships that have been
attacks have included the kidnapping (in June extensively used for the smuggling of people and
2008) of news anchor Ces Drilon and two crew weapons (Colombo Times 2009).
members who had been working on a story about Closely related to human trafficking is the
the Abu Sayyaf. In May 2001, ASG rebels kid- crime of passport fraud, particularly as terrorists
napped 20 people from the Dos Palmas beach require forged identity documents as a means to
resort on Palawan island (including three clandestinely transit borders. Thailand is reputed
Americans, Martin Burnham, Gracia Burnham, to be one of the top passport forging centers in
and Guillermo Sobero). Sobero was beheaded the the world (Thailand Press Reports 2006).
following month; Martin and Gracia Burnham Hambali, the former JI leader, was captured
were held hostage for about a year. Martin because Thai and American officials were able to
Burnham was later killed during a Philippine track down his passport forger in Chiang Mai.
hostage rescue operation, while Gracia Burnham Thailand has had a persistent reputation as a cen-
survived. ter for passport forgery. In December 2010, police
The Dos Palmas kidnapping occurred approx- in Thailand, working with their Spanish counter-
imately 1 year after another notorious case in parts, arrested two Pakistani men and a Thai
which Abu Sayyaf militants launched a cross- woman in a Bangkok apartment; the three were
border (maritime) raid into Malaysia, kidnapping part of an international passport forgery ring. In
21 European and Asian hostages from a luxury Spain, police arrested another eight members of
resort in Sipadan. The year-long hostage crisis the ring (comprised of seven Pakistanis and one
attracted international media attention, including Nigerian). The group would steal passports from
an intervention by the Libyan Government, which tourists and others around the Barcelona area,
reportedly paid a ransom to the ASG operatives. then send them to Thailand to be altered. The
Another crime linked to terrorist groups is group allegedly supplied forged passports to ter-
human trafficking. Prior to its defeat by Sri rorists responsible for the 2004 bombing of the
Lankan Government forces, the Liberation Tigers Madrid commuter rail station (which killed 191
of Tamil Eelam (LTTE) regularly conducted both people) and the 2008 Mumbai attacks (which
human trafficking and migrant smuggling activi- killed 195 people) (Thailand Press Reports 2010).
ties as a means, primarily, of raising cash. The Other customers included Lashkar-e-Taiba and
LTTE also demonstrated its ability to conduct the LTTE (Associated Press 2011).
related criminal activities, including extortion Globally, a strong association exists between
and money laundering. Canadian officials have terrorism and the global illicit narcotics trade.
publicly voiced concerns that recent episodes of According to Anthony P. Pacido of the US Drug
mass migration (including the arrival of ships in Enforcement Administration (DEA), 18 of 44 des-
2010, such as the MV Sun Sea, which carried 490 ignated international terrorist groups (designated
Tamils to Canada) are being organized by the by the US Government as a Foreign Terrorist
LTTE or its overseas remnant organization, Organization) “have been linked to some aspect” of
including the European-based Transnational narcotics trafficking (Pacido 2010). In Afghanistan,
Government of Tamil Eelam (TGTE) (Kamloops the Taliban has earned hundreds of millions of dol-
Daily News 2011; Asian Tribune 2011). Canada’s lars from the proceeds of narcotics trafficking in
Public Safety Minister, Vic Toews, announced Afghanistan; some of these funds are used to pur-
shortly after the arrival of the MV Sun Sea chase arms that are used against USA and coalition
(August 2010) that “we are very concerned that forces in Afghanistan (Pacido 2010).
10 Terrorism in Asia: A Persistent Challenge Sustained by Ideological, Physical, and Criminal Enablers 161
Radical Islamic ideology in Southeast Asia (p. 30). Dolnik, A. (2007). Suicide terrorism and Southeast Asia. In
West Point: Combating Terrorism Center. A. T. H. Tan (Ed.), A handbook of terrorism and insur-
BBC Monitoring Asia Pacific-Political. (2010). Pakistan: gency in Southeast Asia. Cheltenham: Edward Elgar.
Three alleged bank robbers of banned group arrested Dreyer, J. T. (2005). China’s vulnerability to minority
in Karachi. separatism. Asian Affairs, an American Review, 32(2),
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Hussain. ist attempt on China flight.
Part II
Crime and Criminal Justice in
Selected Asian Countries
Crime and Justice in Cambodia
11
Roderic Broadhurst, Thierry Bouhours,
and Chenda Keo
Vietnam withdrew its troops from Cambodia, is preparing charges against the few remaining
the regime was renamed the State of Cambodia ageing leaders of the KR. After four rounds of
(SOC). Thus in 1979 a second civil war (with national elections in 1993, 1998, 2003, and
strong nationalist anti-Vietnamese overtones) 2008, the CPP has consolidated its dominance
commenced. The combatants comprised PRK/ over government and its leader and Prime
SOC forces supported by Vietnam and the Minister Hun Sen has steadily increased his
Soviet Union on one side and on the other side control over the country.
KR and royalists forces militarily supported by
China and politically by the USA, most western
capitalist countries, and ASEAN nations. In 11.2 Crime Categories and Patterns
1991 a United Nations intervention resulted in a
peace settlement known as the Paris Accords Police crime statistics provided by the Ministry
and the establishment of the United Nations of Interior (MoI) distinguish between a “Serious
Transitional Authority in Cambodia (UNTAC). Crime Situation” also referred to as a “Felony”
In 1993 UNTAC oversaw the adoption of the with four categories: Robbery (threat/non-fatal
present constitution and implementation of the and robbery-murder), Murder (successful and
first free elections. The royalist party attempted), Terrorism (kidnapping, confinement,
(FUNCIPEC) won a majority but, in the hope of grenade attack, organised crimes), and Sexual
preserving a fragile peace between former war- Offences (rape, rape-murder, human trafficking);
ring factions, was forced into an inherently and a “Minor Crime Situation” also referred to
unstable governmental alliance (a joint Prime as a “Misdemeanor” with five categories: Theft
Ministership) with the Cambodian People Party (stealing and pickpocketing), Fraud/Breach of
(CPP) led by Hun Sen. This precarious peace Trust, Battery With Injury, Use Of Illegal
was indeed seriously threatened by armed Weapon, and Others. Human Trafficking, includ-
clashes between the CPP and royalist forces in ing children, for illegal labour and prostitution in
1997 which led to a significant number of casu- neighbouring countries (e.g. Vietnam and
alties and the end of the co-prime ministership Thailand), is often cited as a serious criminal
with the defeat of the royalists military capabil- activity. However, there is a scarcity of empirical
ity. After the second elections of 1998, the research on the extent and dynamics of this ille-
CPP–FUCINPEC governmental alliance was gal trade. In a survey of 18 out of 26 Cambodian
eventually reinstated, but with a greatly weak- prisons, LICADHO (2009) found that the num-
ened FUNCIPEC. However, this arrangement ber of people incarcerated for human trafficking
was accompanied by continued periods of polit- was 215 in 2007 and 255 in 2008 and that around
ical uncertainty and violence. Remaining pock- 80% were women. A recent study (Keo 2011)
ets of KR resistance ended in 1998, which also confirmed this pattern and revealed that most of
coincided with the death of Pol Pot. Efforts to these prisoners, particularly women, were poor
bring to justice the leaders of the KR responsi- and uneducated individuals, many of whom had
ble for the genocide and atrocities of the revolu- been victims of miscarriages of justice at the
tionary period have been long delayed by a hands of a corrupt criminal justice system.
government reluctant to disturb pragmatic The production, use, and sale of illegal drugs
arrangements that encouraged defections from are a criminal offence in Cambodia, although drug
the KR. At the time of writing a tribunal use appears to be classified as a misdemeanour
(jointly established by the United Nations and and trafficking as a felony. The same types of
the Kingdom of Cambodia and known as drugs (e.g. heroin, cocaine, cannabis, metham-
Extraordinary Chambers in the Courts of phetamines, ecstasy, etc.) as in most Western
Cambodia) of Cambodian and international countries have been declared illegal. A recent
jurists has sentenced the former chief of the KR report by the National Police Commissioner indi-
security police for crimes against humanity and cates that drug trafficking (heroin and particularly
11 Crime and Justice in Cambodia 169
At this stage we need to emphasise that in the UNICVS conducted in three provinces in
Cambodia there is an enormous dark figure of 2000/2001 and 2006/2007 showed that the esti-
crime. The two sweeps of United Nations mated rates of rent-seeking by officials had
International Crime Victim Survey (UNICVS) reduced from 27.8 to 18.2% in Phnom Penh, and
revealed that most victims of crime do not report from 15.6 to 12.9% in Kampong Cham. In the
their victimisation to the police, who in addition third province, Kandal, the rates (18.3%) had not
only record a fraction of the reported offences changed. The actual experience of corruption had
(Broadhurst 2002, 2006; Broadhurst and also decreased in respect to police (except in
Bouhours 2009). For instance, if we compare the Kandal). In Phnom Penh, the proportion of vic-
rates based on police records in 2005 with the tims of police corruption reduced from 10.1% in
estimated rates based on the UNICVS in Phnom 2000 to 5.7% in 2005 and represented 31.2% of
Penh very large differences are observed. Instead all victims of corruption compared to 36.5% in
of a rate of 29 for non-fatal robbery based on 2000. In Kampong Cham the proportion reduced
police records a rate of 1,831 per 100,000 is esti- from 4.5% in 2000 to 2.5% in 2006 and repre-
mated by the UNICVS; for non-fatal rape instead sented 20.2% of all victims of corruption com-
of 0.7 based on police records a rate of 92 per pared to 29.1% in 2000. In Kandal, however, the
100,000 is estimated. Again for assault with experience of corruption by police officers had
injury instead of 6.5 per 100,000 based on police increased from 3.5% in 2000 to 4.4% in 2005 and
records, 1,465 per 100,000 is estimated by the represented 24.1% of all victims of corruption
UNICVS; for all theft (including vehicles, live- compared to 18.9% in 2000. In the three prov-
stock, burglary, and pickpocketing) instead of inces the most frequently cited offenders by vic-
18.4 per 100,000 based on police records the tims of corruption both in the first and second
UNICVS estimated a rate of 33,700 per 100,000, sweeps were elected commune officials
and for fraud instead of 0.62 per 100,000, 25,366 (Broadhurst and Bouhours 2009). It is more
per 100,000. The same order of magnitude in the difficult to estimate the extent of corruption by
difference between rates based on police records the elites, but it is clear that many high-ranking
and the UNICVS was found in Kandal and government officials have amassed fortunes unre-
Kampong Cham in 2000 and 2005–2006. lated to their legitimate salaries.
Although actual crime rates are far higher than Commercial fraud affecting ordinary consum-
the official crime rates, they have dramatically ers is still widespread, although the rates have
reduced since 1998. Analyses of press reports significantly declined between 2000 and 2006,
(Broadhurst and Bouhours 2009), interviews from 39.6 to 25.4% in Phnom Penh, 31.8 to
with judicial police (Broadhurst 2002), and hos- 18.7% in Kandal, and 29.8 to 22.0% in Kampong
pital data (Wille 2006) confirm the declining Cham (Broadhurst and Bouhours 2009).
trends of the rates of homicide, and the UNICVS
sweeps show a significant decrease in both prop-
erty and violent crime. 11.5 Regional Crime Patterns
in 2006). On the other hand, police statistics show according to political allegiance rather than
that rates of homicide tend to be higher in many expertise in the field of law and criminal justice.
rural areas compared to the capital Phnom Penh. Many police were trained in Vietnam and Russia,
Until 2005, the rate of robbery was significantly and focused mostly on internal security and intel-
higher in the capital Phnom Penh than in other ligence rather than on law and order and crime
provinces. For instance, of all the robberies control (Gottesman 2003). Regarded as a security
recorded nationally by the police over 7 years agency of the government with minimal commit-
(1996–1999 and 2001, 2003, 2005) a third ment to civilian peacekeeping, the police and the
occurred in Phnom Penh whose population dur- whole Criminal Justice System (CJS) had a very
ing the same period was only about 9.5% of the low standing in the community. Recourse to the
national population (hence an average rate of formal justice system was rare as people contin-
33.16 per 100,000). However, in 2006 the num- ued to use traditional mediation and resolution to
ber of robberies (including robbery-murders) deal with crimes and conflicts at the commune
recorded in Phnom Penh by the police had and village level. While a court system, styled as
significantly declined to reach a rate of only 14.79 People Revolutionary Courts, had been re-estab-
per 100,000, which was lower than the rates in a lished in May 1980, and formalised by the enact-
few semi-rural and rural provinces (Sihanoukville, ment of the constitution of June 1981, judges and
Kong Kep, and Pailin). The UNICVS also prosecutors were generally unqualified, poorly
revealed that, although reduced, the prevalence of educated, and subject to military control (AusAID
robberies as well as “street-level” fraud and cor- 2001). There was no independent appellate body.
ruption was higher in Phnom Penh than in Kandal Any review of verdicts and sentences pronounced
and Kampong Cham. UNICVS (but not police by the courts was thus in the hands of the execu-
statistics) showed higher rates of burglary in tive branch. Further developments, such as the
Phnom Penh, and both police statistics and enactment of the Law Concerning the Organisation
UNICVS showed higher rates of pickpocketing of the Courts and Prosecutors and the establish-
in Phnom Penh than in rural areas. ment of the Institute of Public Administration
and Law (IPAL) in 1982, the People’s Supreme
Court in 1985, or even the new SOC constitution
11.6 The Legal System in 1989, did not bring any significant changes to
the system and its standing in the community.
Before the French Protectorate the Cambodian Since the Paris Accords in 1991, the official
legal system was essentially a customary law sys- system has remained inquisitorial and is primar-
tem with widespread use of mediation and repa- ily based on a civil law mixture of French-
ration to settle local disputes and crime (Forest influenced codes from the period of UNTAC,
1979). During the Protectorate an official legal royal decrees, and acts of the legislature, with
system patterned after the laws and courts of influences of customary law and remnants of
France was imposed (hence inquisitorial in rela- communist legal theory. However, most cases
tion to the criminal law), but many cases contin- continue to be dealt with informally at the village
ued to be dealt by informal customary practices or commune level.
(Forest 1979). After the protectorate until 1975,
the official legal system and informal practices in
use during the Protectorate were maintained. The 11.7 The Criminal Justice System
Khmer Rouge regime of terror (1975–1979)
destroyed the legal system, judicial officials were In addition to a new constitution, 2007 saw the
murdered, and traditional informal mediation passage of the Law on Criminal Procedure, which
practices were undermined. During the PRK/ defines the roles and functions of the police,
SOC regime (1979–1991) a soviet-style legal courts, and prisons. Agencies in the Cambodian
system was imported from Vietnam and staffed CJS include the MoI, the National Police
11 Crime and Justice in Cambodia 173
Department, the Gendarmerie Militaire, and the salaries and operating expenses, but take direc-
Department of Prisons. The Ministry of Justice tion from the Deputy Governor (who, in theory
(MoJ) is responsible for the court system, and the but rarely in practice, is responsible for infra-
Supreme Council of Magistracy for the manage- structure and other resources) about provincial
ment of judges and prosecutors. policing priorities.
Some international donors such as the The role of the Judicial Police and its Central
Australian Government (AusAID) have focused Department of Criminal Police is similar to the
their aid on rebuilding a legitimate Cambodian role performed by policing agencies in many
CJS with long-term programs such as the other countries (i.e. mediation, complaint han-
Cambodian Criminal Justice Assistance Project dling, investigation, and arrests). One of the func-
(CCJAP). However, in spite of ongoing assistance tions of the Scientific and Technical Office, under
many Cambodian people continue to regard the the control of the Judicial Police, is to record and
current CJS as having little legitimacy, because in classify reported crimes, as well as offenders and
the three branches of the system (police, judi- fingerprints. According to the law, Judicial Police
ciary, and corrections) regime capture (lack of can also act as prosecutors and are often appointed
independence) and corruption are endemic. to conduct investigations, but in this role they
have limited powers of arrest and must seek
authority from a prosecutor. As in most inquisito-
11.8 Role of Police rial systems, the investigating judge appointed to
the case can conduct further inquiries.
The Cambodian Police comprises the Gendarmerie However, CCJAP (AusAID 2007a, b) points
and the Cambodian National Police (CNP). The out that poor training of the police force and the
Gendarmerie is primarily a military police force judiciary often prevents the proper application of
and does not have the rural policing function that and compliance with the laws of Cambodia. For
it generally plays in France and francophone instance, many police interrogations end up in
countries. However, in their 2007 report, CCJAP confessions with little supporting evidence. As
(AusAID 2007a, b) noted the overlapping of part of its regular monitoring of prison conditions
functions between the CNP and the Gendarmerie: in Cambodia, the Cambodian League for The
the latter has become increasingly visible deploy- Promotion and Defense of Human Rights
ing to district level in rural areas as well as in [LICADHO] (2007) conducted interviews with
towns and cities, performing “national security” prisoners in 18 prisons, and found that from 1999
roles. The new Criminal Procedure Law provides to 2006 between 450 and 163 inmates had been
the Gendarmerie with the same powers of arrest tortured in police custody. However, it is worth
held by the Judicial Police (AusAID 2007a, b) noting that in 1999 reports of torture in police
although such powers have long been exercised custody represented 13.7% of the population of
by them under the general provision for arrest in the surveyed prisons but that they have steadily
the UNTAC penal code. fallen to represent only 2.1% in 2006, 1.3% in
The structure of the CNP includes a number 2007, and 0.7% in 2008.
of central departments such as Traffic, Means, Other problems, affecting the CNP in general
Training, Scientific and Technical, Human and the Judicial Police in particular, reported by
Trafficking and Child Protection, Public Order CCJAP (AusAID 2007a, b) are poor management
Police, Border Police, Security Police, and and supervision, and lack of strategic planning
Judicial Police. In all Provinces the CNP struc- and equipment. According to CCJAP (AusAID
ture is replicated at the various administrative 2007a, b), the creation of the Offices of Human
strata down to the commune level (Police Post). Trafficking and Child Protection under the
However, Provincial Commissioners must com- responsibility of the Judicial Police is a positive
ply with the national policies and procedures response, but its effectiveness is impaired by a
laid down by the MoI, which is responsible for “lack of proper definition of function, staffing
174 R. Broadhurst et al.
requirements, training requirements, and a plan both located in Phnom Penh. CCJAP (AusAID
for how these Offices will actually function”. 2001) reported that in January 1999, a total of 89
Decades of conflicts have resulted in an over- judges, 47 prosecutors, 368 court clerks, and 233
staffed National Police Department, which was other officials were attached to these courts. The
used to absorb demobilised military personnel most recent statistics from the Council of Justice
with little sense of their civilian mission and the Ministry (CJM) shows that as of May 2006, there
provision of services to the community. This con- were 167 judges (22 females) and 72 prosecutors
tributes to a widespread feeling of mistrust, (one female) (CJM 2006).
reflected for instance in the very low reporting Before 2001, little training was available for
rates of criminal victimisation to the police the magistracy and court clerks; apart from the
(Broadhurst and Bouhours 2009). Given the level legacy of “socialist justice” uncoordinated and
of corruption in the police (Calavan et al. 2004) inadequate programs were provided by some
and in most other institutions, there is also cyni- NGOs. Training courses for judges and prosecu-
cism about impartiality and fair treatment by such tors before or after appointment were virtually
agencies. For instance, it is not rare for the judi- non-existent. While some judges had received
cial police to seek between 20 and 50% of the university education very few were legally
cost of a stolen motorbike up front before they qualified, including the majority of provincial
begin an investigation (AusAID 2007a, b). While courts presidents and prosecutors. Even the
“street-level” police corruption of this kind has President of the Appeal Court was not a qualified
generally decreased between 2000 and 2007, in lawyer; the only exception was the President of
many locations public cynicism about police cor- the Supreme Court, the highest court in Cambodia.
ruption has grown despite reductions in its inci- There have also been changes in a number of
dence (Broadhurst and Bouhours 2009). Supreme Court judges, increases in the pay of
It is difficult to obtain reliable information judges, improved training, and further oversight
about the number of CNP in Cambodia. CCJAP of judges by the Council of Magistrates.
(AusAID 2001) estimated more than 65,000
police in 1996 and 64,000 in 2001. There was a
national plan to reduce the 1996 staffing by 11.9.1 Juvenile Justice
24,000 in five years, but by 2000 the number
appears to have reduced by only 11,630. In 2001, There are no separate courts for juveniles in the
the Judicial Police had between 8,000 and 9,000 Cambodian CJS and juvenile cases are pro-
officers, but only 800 were female. More recent cessed and eventually heard in provincial courts
estimations (2007) put the CNP number at in the same way as adults. The law, however,
70,000. Yet, a report by the National Police requires that penalties for juveniles be half of
Commissioner (January 2009) indicated that the those for adults and prohibits the detention of
total number of the national law enforcement minors less than 13 years old, two rules which
officers as of December 2008 was 55,277 (2,325 according to LICADHO (2007) the judges nor-
females), of which 41,015 (1,428 females) were mally apply. Despite the absence of juvenile
based in 24 municipal/provincial police commis- courts and separate prisons, no specialist train-
sariats (NPC 2009). ing in relation to the treatment of juveniles as
victims, witnesses, or offenders is provided to
officials in the court system. As there are no
11.9 Courts and Procedure alternatives to imprisonment for minors, in 2008
the latter represented 6.3% of the prison popula-
There are 22 courts in Cambodia, one in each tion, a rate that has steadily increased since 1999
province and one in each of the two municipali- (3.3%). The same prison rules (e.g. recreation
ties (Phnom Penh and Sihanoukville). There is time) apply for adults and juveniles and no
also one Appeal Court and one Supreme Court schooling is provided.
11 Crime and Justice in Cambodia 175
Women’s Crisis Center) provide training and between a trial judge and a representative of the
advice to CJS personnel and advocate on behalf prosecution department or the investigating judge.
of the rights of victims and accused persons.
Although improvements in judicial training serious crime. Limited details about the length of
have occurred, examples of poor procedure and prison sentences are provided by the MoI. Article
oversight of police continue. Despite prohibi- 31 of the Criminal Code stipulates imprisonment
tions under the constitution and procedural law, a for a term of 10–20 years for murder.
widespread problem is the acceptance of dubi-
ously obtained confessions extracted from sus- 11.10.1.2 Rape
pects under duress by police. The Constitution Article 33 specifies a prison sentence of
prohibits the extraction of involuntary confes- 5–10 years, which cannot be suspended (but can,
sion in Article 38 (1993) and Article 321. A under article 68, be reduced by half for offenders
study that monitored criminal cases between under 18). However, according to LICADHO
April and June 2007 showed that 124 of 426 (O’Connell 2001, p.49) judges often apply the
defendants complained that they had been law “incorrectly and inconsistently, giving con-
coerced into a confession: 100 of the 124 were victed rapists suspended sentences when the law
convicted. Police officers also misused the per- prohibits it”.
mitted 48-h detention period in police custody to
extort confessions. In most cases, defendants 11.10.1.3 Theft, Burglary, and Robbery
alleged that they were beaten or threatened or The Criminal Code classifies burglary as robbery.
promised release in exchange for a confession. Article 34 stipulates a prison term of 6 months to
During the hearing, judges seldom fully consid- 5 years for theft depending on the circumstances:
ered defendants’ allegations of coercion or the for robbery a prison term of 3–10 years that varies
legality of the confession (The Center for Social according to the amount of force or weapon
Development 2007, p. 7). used.
training, literacy, and numeracy programs for prison guards, food rations, relative freedom
detainees. Some of these programs may have within the prison, recreation, opportunity to make
been implemented in the prison located in the site money, and sex are available for those who can
where CCJAP has focused its attention, but in the pay their way in the corrupt prison system. A
main, as reported in 2003 by the 23rd Asian and prisoner transfer agreement was signed with
Pacific Conference of Correctional Administrators Australia in October 2006. At the same date no
“[n]o formalised programs exist within prisons such agreement existed with the UK. The
for the rehabilitation of prisoners to return to Cambodian Government also signed an extradi-
society at the end of their sentence”. Between tion agreement with Thailand in 1999, China in
November and December 2007, one of the co- 2000, and Laos in 2005.
authors visited seven major Cambodian prisons
and found that most of them did not have work-
shops, and when they did, these workshops were References
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Canberra, AusAid.
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tice reform in Cambodia: Strategic framework docu-
such as building environment and rules, vary ment. Unpublished report of the Government of
greatly in Cambodia, unofficial reasons would Australian Scoping Mission (updated May), Phnom
include moving to a better facility. The transfer Penh/Canberra, AusAid.
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mation in Cambodia. Australian & New Zealand
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Prison Directorate. The payment of bribes would Broadhurst, R. G. (2006). Lethal violence, crime and
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Normally, each prison has a committee chaired Martin, & S. Kneip (Eds.), The politics of death.
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Calavan, M. M., Briquets, S. D., & Brien, J. O. (2004).
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more than a year, after at least two-thirds has Bulletin. Year 4, No. 18, 1–14.
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been served. This privilege provides ample country. Council of Justice Ministry (CJM), Ministry of
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sentence reduction. Many more “unofficial” priv- Rouge: Inside the politics of nation building. New
ileges in relation to cell allocation, treatment by Haven, CT: Yale University Press.
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2010. Phnom Penh: Cambodian League for the (LICADHO).
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Crime and Criminal Justice in Hong
Kong 12
Yuet Wah Cheung and Nicole W.T. Cheung
statistics in portraying the crime situation in soci- are data collected by criminal justice and related
ety. After this section, we describe the major fea- departments of the government, which include
tures of the criminal justice system in Hong the Hong Kong Police Force, the Independent
Kong, and discuss its changes since 1997 and the Commission Against Corruption (ICAC),
new challenges ahead. Customs and Excise Department, the judiciary,
and the Correctional Services Department. Law
enforcement departments, especially the police,
12.2 Counting Crime Officially and are at the forefront of handling crime, and hence
Unofficially their records contain rich records of different
kinds of offences in society. One of the major
Crime is perhaps the most elusive phenomenon drawbacks of official statistics is that they would
in society. It is very much an integral part of the miss offenders, and the crimes they commit, that
society that we live in. At varying degrees, crime are not brought to the attention of law enforce-
and victimization are part of the daily lives of ment agencies. Many crimes are not reported to
most citizens. The very presence of law enforce- the police, and this “dark figure” (Coleman and
ment, judiciary, and correctional departments is a Moynihan 1996) has a lot to do with factors
commitment of our society to combating and pre- such as the willingness of citizens to report
venting crime. In most media, crime appears as crime to the police, and the size of the police
the most persistent content of daily reports and manpower (O’Brien 1996).
commentaries. Although crime and its societal Unofficial crime data are data collected by
reactions are everywhere, we do not actually have non-government organizations, such as private
clear and simple answers to these questions: How security firms, social service agencies, and aca-
much crime is there in society? What are the demic/research institutions. Compared with
major types of crime? How serious is the crime police statistics, which are comprehensive data
problem? How has the pattern of crime changed covering many different kinds of offence,
over time? There seems to be no shortage of unofficial crime data are usually collected for
information about crime in society, since it is special purposes. For example, private security
abundant in personal accounts, criminal justice firms collect information on incidents of break-in
departments, and media reports. However, how and damage to property. Voluntary drug treat-
accurate are the various sources of information ment agencies have information on drug abusers
about crime in representing the actual amount of and their patterns of drug use.
crime in society? Moreover, despite the plurality Academic or professional researchers study
of information about crime, how the public per- crimes and criminals according to their research
ceive the crime problem is shaped mainly by the interests or those of respective institutions. Many
selective reporting of crime in the media. The of the studies conducted by these researchers are
“fear of crime,” as criminologists have demon- in the form of surveys, involving either house-
strated, is a dominant trait of the public percep- holds or a specific sector of the population (e.g.
tion of crime, and it persists regardless of the secondary school students). Due to the sensitive
actual extent of crime and its vicissitudes in soci- nature of topics on crime and deviance, the self-
ety (Garofalo 1979). report method using a standardized and anony-
If the public perception of crime is not an mous questionnaire is commonly used in the data
accurate barometer of the actual extent of crime collection of surveys. The anonymity of this
in society, the crime situation must be under- method can facilitate more reliable answers of
stood by making reference to sources of system- respondents filling out the questionnaire.
atically collected data on crime. Broadly However, this method can only collect data per-
speaking, crime data can be divided into two taining to milder and more trivial forms of devi-
types, with regard to the nature of the organiza- ance rather than serious crimes (Livingston 1992,
tion that collects the data. Official crime data pp. 102–103).
12 Crime and Criminal Justice in Hong Kong 185
As there are both strengths and weaknesses 1. For violent crime against person (e.g. murder,
with official and unofficial crime data, the two wounding, rape, indecent assault), one crime
types of data should be considered as comple- will be counted for each victim.
mentary to each other rather than mutually exclu- Example: A gang attacks four men with weap-
sive. Since each of them uses a different approach ons. One man is killed and the other three are
to counting crime, no single source of data can injured. One offence of murder and three
give us a comprehensive picture of the crime situ- offences of wounding will be counted. The
ation in society. The more sources of data we use, number of offenders is not relevant.
the fuller will be the picture we can get. We now 2. For crime against property or public order
examine major examples of official and unofficial (e.g. robbery, burglary, snatching, shop theft,
crime data. theft from vehicle, and taking conveyance
without authority), one crime will be counted
for each distinct incident.
12.2.1 Official Crime Data Example: Two men rob a bank, and during the
operation, ten customers inside the bank are
Sources of official data described in this chapter also robbed. One offence of robbery will be
include criminal justice units of the government, counted, regardless of the number of victims.
namely, the Hong Kong Police Force, ICAC, 3. For crime which is considered as a continuous
Customs and Excise Department, Judiciary, and offence if repeated (e.g. blackmail, claiming
Correctional Services Department. Over the to be member of an unlawful society, decep-
years, the government has also conducted several tion, and theft by employees from their
victimization surveys. In addition, due to the employers), one crime will be counted for
growing public concern over increasing incidence each offence or a series of similar offences
of family violence since the late 1990s, the Social committed by the same offender(s) involving
Welfare Department has established the Child the same victim(s).
Protection Registry and Central Information Example: Three men blackmailed a person for
System on Battered Spouse Cases and Sexual money ten times during the past 3 months.
Violence Cases for keeping a better record of One offence of blackmail will be counted,
reported domestic violence. regardless of the number of times repeated.
4. For crime associated with other naturally con-
12.2.1.1 Hong Kong Police nected offences, those offences which are
As in other cities, statistics of the Hong Kong naturally connected with the more serious
Police Force are the most widely used official crime will not be counted statistically.
crime data in Hong Kong. Despite the fact that a Example: A man is arrested for attempting to
lot of crimes are not reported to the police, “crime steal something valuable from a vehicle. He has
known to the police” still represents the richest broken the window of the vehicle and is also
source of official data on crime. Crimes in police found in possession of a spanner, a chisel, and a
statistics are grouped into different categories, screwdriver. One offence of theft from vehicle
and once in a while categories may be revised or will be counted. No offence will be counted for
new categories created in response to current sit- criminal damage of window and possession of
uations. The present classification scheme is instruments for unlawful purposes.
shown in Table 12.1. Statistics on crime reported to the police can
How are crimes counted in Hong Kong? The be found in Hong Kong Police Review, published
rules for counting crimes may differ across coun- annually by the Hong Kong Police Force. Crime
tries and time. The latest rules adopted by the data reported in the annual review include not
Hong Kong police are based on four principles as only the number of reported offences in each of
follows (Hong Kong Police 2007, pp. 2–3; see the various categories of crime as shown in
also Cheung and Cheung 2009): Table 12.1 but also the distribution of offences in
186 Y.W. Cheung and N.W.T. Cheung
In Table 12.2, a similarity between the violent The trend of number of offences of these two types
crime rate and the total crime rate can be noticed. of crime has varied over the years. The number of
The violent crime rate was 243 per 100,000 pop- violent crime against person has increased from
ulation in 1986, steadily rising to over 300 in 7,879 in 1986 to 9,629 in 1989, and risen to 10,177
1989, and peaked at 336 in 1991. It began to drop in 1995. Since then, it has fluctuated between
to 294 in 1993, and has been steadily decreasing 9,000 and 11,000 until 2005, but has firmly
to 218 in 2000, and remained just slightly more remained over 11,000 until today. The opposite
than 200 in the late 2000s. It even dropped to 192 trend is found in violent crime against property.
in 2010. The total crime rate also increased since Although it has also started to increase from 6,424
the mid-1990s (1,384 per 100,000 population in in 1986 to its peak of 10,414 in 1991, it has con-
1986), reaching its peak in 1991 (1,523). Since tinuously decreased afterwards. It has dropped by
then, it has been declining, and in the 2000s, it half by 1996 (5,241), and further reached the ever
has remained only slightly over 1,000. smallest number of 1,703 in 2010.
Violent crimes are divided into violent crime Like police statistics everywhere, crime data
against person and violent crime against property. collected by the Hong Kong police should be
188 Y.W. Cheung and N.W.T. Cheung
interpreted with caution. They are, genuinely, the 1980s. By the 1990s, it had increased to over
“crimes known to the police,” which necessarily 3,000, reaching its peak of 4,371 in 2002. It then
cannot include those crimes that are not known to dropped back to 3,339 in 2006, and remained
them. A host of factors may contribute to this about the same until 2010.
“dark figure of crime.” First, some crimes are not The increase of the total number of reported
reported to the police because of a range of rea- cases since the early 2000s has been due to the
sons, including the offence being too trivial to the increase in the number of reported cases related
victim, the low detection rate of the police for the with private sector and public bodies. The num-
particular type of crime, the victim’s intension to ber of reported cases related to the private sector
conceal delinquent behaviours such as rape and was well below 2,000 before the 2000s, but it
drug abuse, the victim’s unawareness of the reached 2,403 in 2002 and has remained over
occurrence of the crime, and the lack of public 2,000 since then. A similar pattern is found in the
visibility such as white-collar crimes (Hagan number of reports related to public bodies, which
1985, p. 95). Second, some crimes reported to the reached 330 in 2002 and has remained over 200
police are not recorded (Hood and Sparks 1970, until 2010. On the contrary, the number of reports
p. 35). Sometimes citizens are not able to give an related to government departments has been
accurate account of the particular offence, mak- fairly stable. It dropped from 1,638 in 2002 to
ing it difficult for the police to take follow-up 1,068 in 2006, and remained at about 1,000
action. The police sometimes encounter citizens thereafter.
who claim that they have been victimized by a Not all corruption offences are reported, as the
crime, but the circumstances do not lead to the public’s willingness to report fluctuates over
conclusion that a crime has occurred. Third, as time, and some corruption behaviours are suc-
there is discretion in police work, police officers cessfully concealed. Some reported offences are
might choose not to record a reported crime not pursuable. For example, in 2010, the total
because they thought that the crime was too number of corruption reports was 3,427. However,
minor, or even because they were too busy the number of pursuable reports was 2,663, which
(Cheung and Cheung 2009, p. 41). is 77.7% of the total number of reports (ICAC
2010, p. 35). Also, some offenders are not pros-
12.2.1.2 The ICAC ecuted, as a caution may be issued for minor
The mission of the ICAC, which was founded in offences, particularly when it is not in the public
1974, is to address the corruption problem in interest to prosecute. For example, in 2010, 393
Hong Kong. It is a government unit functionally persons were prosecuted and 30 formally cau-
independent of other law enforcement depart- tioned (ICAC 2010, p. 38).
ments and accountable directly to the governor
(Lo 1994). The work of the Operations Department 12.2.1.3 Customs and Excise Department
of ICAC is to investigate and prosecute alleged The Customs and Excise Department has a
corruption cases in both public and private sec- diversity of responsibilities ranging from anti-
tors under the Prevention of Bribery Ordinance, smuggling, protection and collection of revenue
the Independent Commission Against Corruption on dutiable commodities, detection and deter-
Ordinance, and the Elections (Corrupt and Illegal rence of narcotics trafficking and drug abuse,
Conduct) Ordinance. The total number of corrup- safeguarding of intellectual property rights and
tion cases reported to ICAC in selected years is consumer interests, protection and facilitation
presented in Table 12.3. of legitimate trade and industry to uphold Hong
Since the beginning of ICAC’s operation, the Kong’s trading integrity, and fulfilment of inter-
total number of reported cases (excluding elec- national obligations. Crime statistics recorded
tion-related reports) had drastically decreased by this department pertain to violations of
from 3,189 in 1974 to 1,234 in 1978, showing ordinances relevant to these responsibilities.
that ICAC had made an impact on the society. In 2011, the department prosecuted 3,595
The number began to rise to more than 2,000 in cases (a case involving a number of ordinances
12 Crime and Criminal Justice in Hong Kong 189
Table 12.3 Total no. of corruption cases reported (excluding election-related cases)
in selected years
Corruption reports Corruption reports Corruption
Total corruption related to govern- related to the reports related
Year reports ment departments private sector to public bodies
1974 3,189 2,745 416 28
1978 1,234 887 305 42
1982 2,349 1,421 840 88
1986 2,574 1,364 1,060 150
1990 2,390 1,185 1,196 69
1994 3,312 1,381 1,830 101
1998 3,555 1,456 1,860 239
2002 4,371 1,638 2,403 330
2006 3,339 1,068 2,037 234
2008 3,377 960 2,188 229
2010 3,427 1,024 2,181 222
Source: ICAC Web site: http://www.icac.org.hk/en/about_icac/p/icacar/index.html
Now, access to such data must be sought through police data. Despite this high correlation, CSD
special requests. admission statistics are also affected by many
factors, including police priorities in laying
12.2.1.5 Correctional Services charges for certain type of offence, the tendency
Department of the courts to deliver heavier or lighter sen-
As the final part of the criminal justice system, tences, and the capacity and manpower of CSD
the Correctional Services Department (CSD) institutions.
receives individuals into its varied institutions
(prisons, detention centres, training centres, reha- 12.2.1.6 Victimization Surveys
bilitation centres, and Drug Addiction Treatment Victimization surveys have become a popular
Centre), while some basic data regarding admis- method of collecting crime data worldwide. In
sion numbers, socio-demographic characteristics Hong Kong, seven crime victimization surveys
of prisoners/inmates, types of offence, etc. can be (CVSs) have been conducted since the late 1970s
found in the Department’s Annual Reviews. (1979, 1982, 1987, 1990, 1995, 1999, and 2006).
Since CSD is an integral part of the criminal These surveys were conducted by the Census and
justice system, admission figures are highly cor- Statistics Department under the auspices of the
related with police crime data. The greater the Fight Crime Committee, a government advisory
number of offences known to the police, the body that provides recommendations on mea-
greater will be the number of prosecutions, which, sures to prevent and reduce crime. The objective
in turn, results in more admissions to CSD’s insti- of CVS is not only to provide information on
tutions. In Table 12.4, police statistics on the total crime victimization but also to examine the extent
number of reported crime and admission num- to which the public was willing to report crime to
bers of CSD institutions are compared for selected the police. The extent of under-reporting to the
years in the period from 1991 to 2010. police can roughly be used to estimate the size of
Although the comparison between police sta- the “dark figure” of crime.
tistics and CSD admission data is only a crude As in previous CVSs, the 2006 survey adopted
one, as the processing of crime from arrest to sen- a household survey design that involved the inter-
tencing may take more than a year, Table 12.4 view of all household members aged 12 and over
clearly suggests a positive relationship between in sampled households. A total of 24,272 house-
the total number of crimes reported to the police holds were selected, and 20,075 households were
and the number of admissions to CSD facilities. interviewed (Census and Statistics Department
In the selected years between 1991 and 2010, 2007, p. 147). Information on the victimization
there were only two years when CSD admissions of both the person interviewed and the household
did not increase or decrease correspondingly to was collected. Comparisons of victimization data
Table 12.4 Total no. of crimes reported to the police and total no. of admissions to correctional services institutions
(CSD), selected years between 1991 and 2010
1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2010
Total no. of 88,659 82,465 91,886 67,367 76,771 73,008 88,377 77,437 80,896 77,630 75,965
crimes
reported to
the police
Total no. of 13,648 13,327 17,631 16,149 17,076 20,859 26,659 25,523 18,874 17,174 16,231
CSD
admissions
Sources: Hong Kong Police Review; Appendix 5 of CSD Annual Reviews 2000 and 2010, in the Web site of CSD:
http://www.csd.gov.hk/english/pub/pub_ar/pub_ar.html
12 Crime and Criminal Justice in Hong Kong 191
and police statistics on specific crimes reveal the are collected from two mechanisms, namely, the
discrepancies between these two sources of crime Central Registry of Drug Abuse database and stu-
information. Some discrepancies are bigger, and dent surveys. The central registry is a database
others are smaller. For example, the number of that provides relevant drug statistics on drug
indecent assault for 2005 as indicated in the 2006 abuse patterns and trends. It is based on a net-
CVS was 13,800, whereas the number of inde- work of more than 60 reporting agencies, which
cent assault reported to the police for the same include law enforcement departments, drug treat-
year was 1,136, which was only 8.2% of the CVS ment agencies, social welfare agencies, tertiary
figure. Deception is another example of low institutions, hospitals, and clinics (Cheung and
reporting rate. The CVS showed 17,100, but the Ch’ien 1996). The Narcotics Division also com-
number of reported cases was 1,400, only 8.1%. missions research organizations to conduct stu-
For offences that are more likely to involve the dent surveys to find out the prevalence and
police, the discrepancy between the two sets of associated factors of drug use of secondary stu-
data is understandably smaller. In CVS, the num- dents. Altogether seven surveys have thus far
ber of wounding and assault for 2005 was 17,500, been conducted, in 1987, 1990, 1992, 1996, 2000,
whereas the reported number was 6,800, which is 2004, and 2008/2009 (Narcotics Division 2010).
38.8%. Vehicles are under strict registration, and The Labour Department has the most detailed
so theft of vehicle is more likely to be reported. records of incidents of labour disputes, violations
CVS showed that for 2005, there were 1,700 vic- of safety regulations in workplace, and other
timizations of theft of vehicles. The number of work-related offences. The Education Bureau
reported cases of theft of vehicle was 1,500, (formerly, Education and Manpower Bureau)
which is 88%. Among all the victimizations would have information about the occurrence of
shown in the CVS, the overall reporting rate was student bullying, thefts, and other delinquent
only 19.1% (Census and Statistics Department behaviours in schools. The Social Welfare
2007, p. 100). Department has, since the mid-1990s, set up a
There are limits as to how much the CVS and Child Protection Registry to systematically record
police data can be directly compared. Data col- information on newly reported and at-risk cases
lected in CVS are limited to crimes against the of child abuse, and the Central Information
person and crimes against property. The sample System on Battered Spouse Cases and Sexual
of CVS would exclude people who are not living Violence Cases to record spousal aggression
in residential households at the time of the sur- cases (Social Welfare Department 2007). Crimes
vey. Despite these and other limitations, CVS can committed by corporations, which are not readily
fill many of the gaps in police statistics by its available in police or ICAC statistics, can be
ability to indicate people’s willingness to report obtained from a variety of sources, including the
crime and offer rich information about the crime Securities and Futures Commission, the
and crime scene, and the possible social relation- Environmental Protection Department, the Urban
ship between the offender and the victim. and Regional Council, the Consumer Council,
etc. (Cheung and Cheung 2009, p. 48).
12.2.1.7 Other Official Statistics
Besides the above-mentioned law enforcement
departments, other government units also keep 12.2.2 Unofficial Crime Data
records of incidents of crime and deviance that
occur in connection with the operation of these Unofficial crime data are collected by non-gov-
units. For example, the Narcotics Division of the ernment organizations, such as private security
Security Bureau is active in gathering informa- firms, social service agencies, and academic or
tion pertaining to drug abuse and its associated research institutions. Crime-related cases are
factors for the facilitation of anti-drug strategies part of the records in non-government organiza-
and drug treatment programmes. Drug abuse data tions whose operations are directly or indirectly
192 Y.W. Cheung and N.W.T. Cheung
related to crime and deviance. For example, 2006), and child abuse of parents (Tang 1998).
managements of shopping malls have records of Furthermore, government departments also com-
shoplifting incidents reported by shops in the missioned university researchers to conduct com-
malls. Outreaching social work agencies have munity surveys relating to crime and deviance
information on the delinquent behaviour of mar- topics that have generated heated public concern.
ginal youths who are their clients. Non- For example, the Home Affairs Bureau has com-
government organizations vary a great deal in missioned a research team of the Hong Kong
how detailed and systematic their record keeping Polytechnic University in 2005 to study the
practices are. involvement of the general population in gam-
Since the past two decades, a special feature bling activities. Four years later, the Bureau com-
of unofficial crime and deviance data has been missioned a team of the University of Hong Kong
the use of the self-report method in survey data to do a follow-up study in 2005 (Home Affairs
collection (Hindelang et al. 1982; Shapland Bureau 2002, 2005). The Social Welfare
1978). This method involves the administration Department has commissioned a group of social
of an anonymous questionnaire to respondents scientists in the University of Hong Kong to carry
who fill out the questionnaires themselves, pro- out a territory-wide household survey in 2003–
viding answers to questions that ask about their 2004 to determine the incidence and prevalence
commitment of delinquent behaviours in a rates of child abuse and spouse battering
specified period of time in the past (e.g. in the (Department of Social Work and Social
past 30 days). This method is most popular in Administration 2005). Some NGOs have also
surveys of students that aim to understand the become active in research since the 1990s. The
prevalence, patterns, and social and psychologi- Hong Kong Federation of Youth Groups
cal correlates of deviance, delinquency, or other (HKFYG) is probably the most active NGO in
risk-taking behaviours among them. The major the research on youths. Its research has generated
drawback of the method is that it only collects a huge data bank on various aspects of youths
information on less serious and sensitive delin- and their lives in Hong Kong, of which youth
quent behaviours, as respondents are unlikely to deviance and delinquency are among the popular
answer questions on serious delinquent acts. The topics of the surveys (HKFYG 2007).
earliest self-report surveys of students in Hong
Kong were mostly conducted by academics. One of
the earliest studies of deviant behaviour of second- 12.3 The Criminal Justice System
ary students using the self-report method was the
“Behaviour and Attitude of Hong Kong Adolescents The various government departments involved in
Survey,” conducted in 1986 with a sample of 1,139 handling crime together form the criminal justice
students from randomly selected secondary schools system in society. In the above description of
(Cheung and Ng 1988; Cheung 1997). official statistics collected by these departments,
The use of the self-report method has become we have already briefly introduced each of them.
very popular since the 1990s, as social science Here, we will take a look at the whole criminal
research on crime and deviance began to flourish justice system in Hong Kong.
in Hong Kong. While students continued to be In a sense, the Hong Kong criminal justice
popular participants in self-report studies, such system, patterned after the common law system
as the study of school bullying in primary schools of the UK, is not very different from that of many
(Wong et al. 2002; Wong 2004), the self-report Western societies. The emphasis on the rule of
method was also adopted in interview surveys of law and due process has long been rooted in
risk behaviours of other sectors of the population, Hong Kong. Due to the special historical devel-
such as Hong Kong marginal youths’ drug use in opment of Hong Kong, its criminal justice sys-
Hong Kong and Shenzhen, a city in the Mainland tem has also evolved through different stages
most adjacent to Hong Kong (Cheung and Cheung since the Hong Kong Island first fell into the
12 Crime and Criminal Justice in Hong Kong 193
hands of the British in the mid-nineteenth cen- housing, employment, poverty, health care, and
tury. Since the area of Hong Kong was very small, other social problems characteristic of a new
it would seem that any elaborate law enforcement industrial society.
system was not necessary. Even when the The occurrence of riots and unrests in 1950s
Kowloon Peninsula and New Territory regions and 1960s had supported the Hong Kong gov-
were secured by the British to become a part of ernment’s belief that a strong police force and a
Hong Kong at the end of the nineteenth century, punitive approach in law enforcement was
the territory was still small, a mere 400 sq. miles. essential in maintaining law and order and
A remote fishing village at that time, Hong Kong defending a foreign regime. The series of anti-
was inhabited by just a few thousand people. colonial riots in 1966/1967, staged by
But there were serious reasons for establish- Communists in Hong Kong in response to the
ing a strong law enforcement apparatus right proliferation of the Cultural Revolution in
from the beginning. The colony was ruled by a mainland China, had threatened the stability of
foreign government, which did not have legiti- the society and ruined its economy. This devas-
macy in the Chinese population. Therefore, the tating event sent a message to the Hong Kong
first and foremost aim of the criminal justice sys- Government that a stable society needed more
tem was to control the Chinese (Gaylord and than a tough police force. An important way to
Traver 1994, pp. 2–6). In addition to the need for dilute social unrest and to understand the mood
registration of ordinary inhabitants, triads and of the mass was to improve public relations.
organized crimes also must be controlled and Since the 1970s, when the government refor-
monitored. The population began to increase in mulated its policy to build relations with grass-
the first half of the twentieth century, when peo- root communities, the police also played an
ple fled in large numbers from the war-torn and important role. Service became a new mandate,
disaster-struck China mainland to Hong Kong. a new image of the force. Professionalism also
As the Communist Party took over mainland began to be emphasized for the modernization
China in 1949, free entry from the mainland to of the force (Lau 2008), and more and more
Hong Kong was stopped about 2 years later. The university graduates were recruited. By the
population of Hong Kong reached two million in 1990s, the Hong Kong Police Force has gained
1950, a manyfold increase since the beginning of a high reputation among police organizations in
the colony. In place to control crime in such a the world.
large population was the coercive law enforce-
ment system developed since the early years.
12.3.2 The ICAC
The first anti-bribery law in Hong Kong was for corruption in Hong Kong after 1997 due to
the Misdemeanours Punishment Ordinance (No. the return of sovereignty to and incessant integra-
3 of 1898), which gave the police responsibility tion with China (Chan 2001), the ICAC still has
for investigating corruption among public ser- preserved anti-corruption, turning Hong Kong to
vants. After five decades, the Prevention of a city recognized internationally as one of the
Corruption Ordinance (No. 34 of 1948) was least corrupt regions across the globe (Manion
enacted, and the police established an Anti- 2004). With reference to the 2010 Corruption
Corruption Squad to tackle corruption. Four years Perceptions Index complied by Transparency
later, this was transformed in 1952 into the Anti- International (a global civil society organization
Corruption Branch of the police force, with headquartered in Berlin), Hong Kong was ranked
greater power in its work and headed by an assis- 13th among the 178 countries or places assessed,
tant commissioner. Ironically, the police force scoring 8.4 on a 0–10 scale with 10 representing
had become the most corrupt department in the the least corrupt and 0 the most corrupt
public sector, with officers protecting gambling, (Transparency International 2011).
drug, and other vice syndicates. Public confidence
in the police had sunk to a very low level, despite
some further re-structuring of the anti-corruption 12.3.3 Customs and Excise Department
unit in the police force in response to the
Prevention of Bribery Ordinance (Cap 201) in As mentioned above, the responsibilities of the
1971. It was not until the public outcry in 1973 Customs and Excise Department (C&ED) fall
due to the successful slipping out of Hong Kong into a diversity of areas, including anti-smug-
of the Chief Superintendent Peter Godber while gling, protection and collection of revenue on
under investigation for suspected corruption dutiable commodities, detection and deterrence
charges that the British Hong Kong Government of narcotics trafficking and drug abuse, safe-
decided to take drastic measures to remedy police guarding of intellectual property rights and con-
and public sector corruption. sumer interests, protection and facilitation of
Against this background, anti-corruption work legitimate trade to uphold Hong Kong’s trading
was separated from the police force, and in 1974, integrity, and fulfilment of international obliga-
the ICAC was founded (Lo 1994). The ICAC was tions (Customs and Excise Department 2011).
a government unit, but was independent of the Law enforcement in these aspects of work is
police and other law enforcement departments, based on relevant ordinances, including the
and accountable directly to the Governor. It was Dutiable Commodities Ordinance, Dangerous
given the same power as other law enforcement Drugs Ordinance, Copyright Ordinance,
units such as the police and customs and excise. Copyright (Amendment) Bill (2009), Import and
Yet, the ICAC focuses not just on law enforce- Export Ordinance, Trade Descriptions Ordinance,
ment, which is a unilateral approach confining to Toys and Children’s Products Safety Ordinance,
the legal control of the corruption problem. The and Consumer Goods Safety Ordinance.
ICAC certainly was the first to adopt a strategy The Department, headed by the Commissioner
that embraced not only operations (law enforce- of Customs and Excise, has an establishment of
ment) but also systematic prevention (to identify 5,562 posts in 2010 (Information Services
and minimize corruption opportunities in the Department 2010). It is organized into five
working methods of government/public sectors) branches: the Boundary and Ports Branch (airport,
and community-wide education (Lo 2001). This land boundary, and rail and ferry command), the
tripartite strategy and its remarkably high level of Excise and Strategic Support Branch (customs
efficacy are conducive to Hong Kong’s notable affairs, dutiable commodities administration,
and persistent success in anti-corruption reform IT, project planning, and strategic research),
over the last five decades (Lo 2001, Quah 2010). the Trade Controls Branch (CEPA, customer pro-
Despite the concern over surging opportunities tection, trade declaration, and investigation), the
12 Crime and Criminal Justice in Hong Kong 195
Administration and Human Resource Development feature of Hong Kong’s criminal justice process.
Branch (central administration and management), After 1997, the independence of the judiciary has
and the Intelligence and Investigation Branch (nar- been constitutionally guaranteed under Article 85
cotics drugs, anti-smuggling enforcement and of the Basic Law of Hong Kong. The mission of
intellectual property). the judiciary is “to maintain an independent and
The history of the C&ED is as long as that of effective judicial system which upholds the rule
Hong Kong itself, since the attraction of Hong of law, safeguards the rights and freedoms of the
Kong to the British in the middle of nineteenth individual, and commands confidence within and
century was its strategic location for trade with outside Hong Kong” (Judiciary 2011). Any ero-
China. As soon as the British secured Hong Kong sion of judicial independence due to pressure
after the first Opium War in 1841, a Harbour from Beijing would seriously undermine main-
Department was set up to monitor incoming and land’s “One country, two systems” promise to
departing commercial vessels. In 1887, the Hong Kong.
Imports and Exports Office was set up to monitor Magistrates’ courts are where all criminal
imports and exports of opium in Hong Kong. cases commence. They hear a wide range of both
Since then, the past 100 years have witnessed summary and indictable offences. These are the
rapid developments of the Department as Hong busiest courts in Hong Kong, with caseload of
Kong evolved into a bustling entrepot and export over 310,000 in 2010 (Judiciary 2011). More
processing zone in the first half of the twentieth serious indictable offences are referred to either
century, and then as a financial centre since the the District Courts or the Courts of First Instance
1980s. Hong Kong is one of the busiest airports (formerly called High Court). Also part of high
and container ports in the world. The huge vol- Court is the Court of Appeal, which hears appeals
ume of cross-boundary traffic of people and against decisions of the District Court and the
goods between Hong Kong and the mainland Court of First Instance in both criminal and civil
requires a strong and effective C&ED force to offences. Appeals against decisions of the Court
deal with smuggling of consumer goods, drug of Appeal are heard in the Court of Final Appeal.
trafficking, and other problems. Since the han- “Final” as it may be, when it comes to Hong
dover in 1997, C&ED and its counterparts in the Kong’s Basic Law, the Standing Committee of
Shenzhen and Guangdong Province have greatly the National People’s Congress has the final
increased their cooperation in combating cross- authority of interpretation. This could create ten-
boundary smuggling and illicit drug trafficking, sion between the judiciary and the government,
and sharing of experience and intelligence. This as the latter might seek the interpretation of the
kind of cooperation will continue and deepen in Standing Committee of NPC to override a differ-
the next decade (Gaylord 2009, p. 89). ent decision, or prevent the occurrence of a dif-
ferent decision, of the Court of Final Appeal. In
1999, the government did just that to prevent the
12.3.4 Judiciary wives of Hong Kong residents who were main-
landers to have right of abode in Hong Kong
The police, ICAC, and C&ED are law enforce- without having to go through the process of
ment departments that bring alleged offenders applying and waiting in line in their hometowns
into the criminal justice process. When a prosecu- in the mainland (Gittings 2009, pp. 163–164).
tion is made, the alleged offender will enter the
second stage of the criminal justice process, where
criminal proceedings will commence. Not all 12.3.5 Correctional Services
criminal cases actually proceed to trial, as some Department
defendants will plead guilty before trial begins.
A judiciary independent of the government The CSD is at the other end of the criminal jus-
legislature and administration is an important tice system. If in the early days a strong police
196 Y.W. Cheung and N.W.T. Cheung
force was necessary for the British Hong Kong inmates admitted to the Drug Addiction Treatment
Government to control the Chinese and protect Centre (DATC) of CSD. Since the mid-1990s, the
the colonial regime in Hong Kong, a tough prison drug of choice among young drug users in Hong
system was an essential supporting apparatus. It Kong has shifted from heroin to psychoactive
is not surprising, therefore, that for many years, drugs such as ecstasy and ketamine (Joe Laider
Hong Kong has had high incarceration rates com- 2005; Cheung and Cheung 2006). Inmates of
pared with many Western societies (Broadhurst DATC aged under 21 have become predomi-
et al. 2008, p. 59). As Table 12.4 shows, during nantly psychoactive drug abusers, whereas the
the early to mid-2000s, the number of admissions percentage of psychoactive drug abusers among
to CSD per year was over 25,000. inmates aged 21 or over is also increasing.
Like the case of the Police Force, CSD has A great challenge for DATC is how to modify its
gone through new developments in the last sev- existing heroin-based treatment modality in order
eral decades. Its current mission is “to protect to cater to the treatment needs of the rapidly
the public and reduce crime, by providing a increasing percentage of psychoactive drug abus-
secure, safe, humane, decent and healthy envi- ers (Joe Laider 2009, pp. 195–196).
ronment for people in custody, opportunities for
rehabilitation of offenders, and working in col-
laboration with the community and other agen- 12.4 Looking Ahead
cies” (Correctional Services Department 2011).
Indeed, incarceration for detention and deter- One of the most important assets left behind in
rence purposes is only one of the functions of Hong Kong by the British is the upholding of the
CSD today. Since the 1980s, reforms have been rule of law and a mature criminal justice system
started, moving away from paternalistic, coer- with a judiciary that is independent of the gov-
cive custody as the only modality to incorporate ernment. When the British colonizers first occu-
rehabilitation as an integral part of its services. pied Hong Kong in 1842, they would not have
The landmark event was perhaps the change of imagined such a far-reaching consequence of
the name of the department from “Prison their presence. At the beginning of the British
Department” to “CSD” in 1982. As more and regime, the legal system was designed primarily
more efforts were made to introduce rehabilita- for crime control and deterrence. The criminal
tive elements in the 1980s and 1990s, a new justice system has evolved and matured over the
Rehabilitation Division was set up in 1998 to decades, concomitantly with social, economic,
coordinate and promote such efforts. A cam- and political developments in society. Since Hong
paign in the community was launched in 1999 to Kong was always referred to before the 1997
encourage employers in the community to give handover as “borrowed time, borrowed place,”
rehabilitated offenders a chance to receive an the basis for the governance of the British Hong
employment and start a new life. In 2000, the Kong administration was more of compliance
term “discharged prisoners” was changed to than legitimacy. Knowing that a colonial admin-
“rehabilitated persons” in order to reduce the istration could never achieve complete legiti-
social stigma associated with the former. macy, the British Hong Kong Government had, in
Since the 1990s, CSD has been facing at least the later part of last century, made efforts to
two operational problems. The first issue is the “maintain a level playing field,” as put by Jones
rapid increase of the percentage of females in the and Vagg (2007, p. 628) in their phenomenal
total prison population, which has great implica- socio-historical analysis of the criminal justice in
tions for more facilities to be made available to Hong Kong. A fair and modern legal system
ease the crowding problem in prison and more could increase the legitimacy of the colonial gov-
personnel to cope with the growing inmate popu- ernment. We may describe this as a kind of
lation (Joe Laider 2009, pp. 192–194). The other “instrumental legitimacy,” established on the
one is the change of the pattern of drug use of basis of the instrumental values of institutions.
12 Crime and Criminal Justice in Hong Kong 197
The reversion of Hong Kong’s sovereignty to ment and its supporters, thereby eroding the basis
China in 1997 did not automatically fill the long- for its independence from the government and
time gap in legitimacy due to the British colonial political parties, an ideal that has been a corner-
administration. Although most people in Hong stone of the Hong Kong society.
Kong supported the handover, mainland China
was an even more alien administration for people
in Hong Kong to be subject to. The “One Country,
Two Systems” promise was a very practical way
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Criminal Justice System in India
13
R. Thilagaraj
The collection and assessment of political and 13.6 The Field Establishment
other useful intelligence relevant to the security of the Police Force
of the entire country are the primary function of
Central Intelligence Bureau (CIB). The bureau
DGP (In-charge of the State Police Force)
primarily coordinates the activities of special ↓
branches of criminal investigation departments of Additional Director General of Police (Addl. DGP)
the states (Nehad 1992). The CIB has its head- ↓
quarters in all the capital cities and important IGP (In-charge of a zone, which comprises few ranges)
towns of the country and its officials have a ↓
sophisticated network of information feedbacks Deputy Inspector General of Police (Dy. IGP)
about individual and organization. The intelli- (In-charge of a range, which comprises a group of
gence collected by the headquarters is screened, districts)
↓
filtered, and verified independently as well as
Superintendent of Police (SP) (In-charge of the District)—
through state departments of criminal Additional Superintendent of Police (Addl. SP)
investigation. ↓
Assistant/Deputy Superintendent of Police (ASP/Dy.
SP) (In-charge of a Subdivision in the district)
13.4 Central Reserve Police Force ↓
Inspector of Police (In-charge of a Police Station)—
The Central Reserve Police was established at Sub-Inspector of Police (SI) (In-charge of a smaller
Police Station)
Neemuch, M.P., in the year 1939. As a strong arm
↓
of the federal government, it was constituted
Police Head Constable (HC) (Staff of the Police
under the Central Reserve Police Bill 1949 as one Station)
of the armed forces for the purpose of maintain- ↓
ing internal security and it is used during the Police Constable (Staff of Police Station)
period of crises with its establishments all over
the country. The force also was conferred with It shall be lawful for any Police Officer to lay
certain powers under Cr. P.C. in matters related any information before a Magistrate and to apply
with suppression of internal disturbances and res- for a summons, warrant, search warrant, or such
13 Criminal Justice System in India 201
other legal proves, as may be by Law issued sheet. Investigation ends in a police report to the
against any person committing an offence. The magistrate (Krishna 1994).
police station is the basic structure and primary Two major issues in Indian Police system fre-
administrative unit of the police administration quently raised are violence in the custody and
(Diaz 1976). The responsibility of maintenance undue political intervention in the police admin-
of law and order, patrolling, and prevention of istration. In a number of judgments by high courts
crime in a particular given jurisdiction rests on and also by the Supreme Court it has been spelt
the police station. Normally the personnel of a out clearly that every policeman must know that
rural police station consists of one Sub-Inspector it is not permissible for police personnel to inflict
of Police as Station House Officer and under him even the slightest physical harm to anyone except
one Head Constable and ten Constables. The cit- in his own self-defense (Sunil Batra vs. Delhi
ies and other urban areas have special problems Administration, 1980). Law places him on par
like slums, traffic, industrial disputes, and orga- with other citizens in that regard and he is entitled
nized crimes, threats of terrorists and VIP visits to use only that much physical force which is rea-
to handle these issues specific police wings are sonably necessary to thwart any assault on him in
also there (Sen 1986). the exercise of his right of self-defense. The
National Human Rights has also many times
intervened against this custodial violence. Despite
13.7 Functions of Police all these interventions still there are reports on
custodial violence and deaths in police custody.
The Federal criminal law, namely, Indian Penal
Code, defines various types of crimes and pre-
scribes punishment for each crime. Similarly the 13.8 Police Abuse of Power
Criminal Procedure Code contains elaborate and Corruption
details about the procedure to be followed by the
Police Officer in every investigation, inquiry, and The subordinate echelons of the police are often
trial, for every offence under the Indian Penal known to extort money at every step which is a
Code or under any other law (Kelkar 1998). The common feature all over India with only a few
main responsibility of the Police is maintenance good exceptions. At the same time the tasks
of law and order, patrolling, prevention of crime, which are the liability of the police are quite often
and investigation in a particular given jurisdiction neglected outright and performance occurs only
(Saha 1990). at a price which affects the public image of the
Investigation primarily consists of ascertain- organization; the gross result is rampant corrup-
ing facts and circumstances of the case. It includes tion and abuse of human rights. They are desper-
all the efforts of a police officer for collection of ately depended on and pampered by the politicians
evidence: proceeding to the spot; ascertaining in all states and the central government and have
facts and circumstances; discovery and arrest of carved out good prospects for themselves in the
the suspected offender; collection of evidence shape of a bloated cadre with copious sinecures
relating to the commission of offence, which may for their advancement in quick steps thanks to
consist of the examination of various persons politicians (Ganguly, 2009). The Transparency
including the accused and taking of their state- International, the Berlin-based NGO, has rated
ments in writing and the search of places or sei- India as the 95th most corrupt country among
zure of things considered necessary for the 183 countries in the world in its year 2011 cor-
investigation and to be produced at the trial; and ruption perception index.
formation of opinion as to whether on the basis of The most important elements of police cor-
the material collected there is a case to place the ruption are misuse of authority and misuse of
accused before a magistrate for trial and if so, personal attainment. One of the main causes for
taking the necessary steps for filling the charge- this is that the police officials have ceased to act
202 R. Thilagaraj
as professionals and are politicized to a great kidnapping for ransom committed by them go
extent. They are manipulated by political leaders, undetected. Delay is attributed to be one of the
who have misused the power of appointments main causes of corruption. The Santhanam
and transfers to patronize weak or corrupt officers Committee report (1964) noted that administra-
for their own selfish purposes at the cost of public tive delays are one of the major causes of corrup-
interest. The main areas for their interference are tion and quite often, delay is deliberately contrived
appointments, transfers, rewards, and punish- so as to obtain some kind of illegal gratification.
ments. General police corruption includes brib- “Speed money” is reported to have become a
ery or exchange of money or something of value fairly common type of corrupt practice particu-
between the police and the wrongdoer. Other larly in matters relating to grant of licenses, per-
police crimes may range from brutality, fake mits, etc.
encounters, sexual harassment, and custodial
crimes to illicit use of weapons.
Open instances of corruption by the lower 13.9 Crime in India
ranks of the police, who are in direct contact with
the public, have wider implications on the image The incidence of cognizable crimes in the coun-
of the police and the police–public relations. The try during the decade 2000–2010 reveals that as
police personnel, especially the Constables, many as 6,750,748 cognizable crimes were
harass and extort money from the people many reported in the country during 2010 comprising
times a day. In most of the places there is a deal 22.25 lakh cases under the IPC and 45.26 lakh
of understanding between the street vendors and cases under the SLL. The ratio of IPC to SLL
the police about the “Mamool amount” (bribe) to crimes varied from 1:1.72 in 2006 to 1:2.03 in
be paid to the police. According to the grapevine 2010. In terms of percentage, 67% of total cases
in the police circles, money extracted from these (IPC + SLL) during 2010 were accounted for by
people also reaches the higher levels. The increas- Special Acts and Local Laws and the rest of the
ing nexus between police personnel at various cases (33%) by the Indian Penal Code. The rate
levels and mafia operators is another disturbing of total crimes (IPC + SLL) was 569.3 in 2010
trend in most of the cities like Mumbai, Delhi, showing an increase of 24.9% over 2006 and a
Kolkata, Lucknow, Ghaziabad, Hyderabad, etc. decrease by 0.3% over 2009. The table below
These mafia syndicates bribe the police and the gives the latest statistics of the IPC and SLL
organized crimes such as periodic extortion and crimes occurred during 2010.
(continued)
S. % To total Rate of Charge- Conviction
no. Crime heads Cases reported IPC crimes crime sheeting rate rate
8 Robbery 23,393 1.1 2.0 70.6 28.3
9 Riots 67,571 3.0 5.7 90.9 21.7
10 Arson 8,508 0.4 0.7 68.1 19.3
Total violent crimes 241,986 10.9 20.4 84.6 27.7
(B) Crime against women (IPC + SLL)
1 Kidnapping and abduction 29,795 1.3 2.5 74.2 28.1
of women and girls
2 Molestation 40,613 1.8 3.4 96.7 29.7
3 Sexual harassment 9,961 0.4 0.8 86.7 52.0
4 Cruelty by husband and 94,041 4.2 7.9 94.2 19.1
relatives
5 Importation of girls 36 0.0 0.0 90.6 20.0
Total crime against 213,585 9.6 18.0 92.0 27.8
women (IPC + SLL)
(C) Economic crimes
1 Criminal breach of trust 16,678 0.7 1.4 70.2 32.7
2 Cheating 78,999 3.6 6.7 72.1 29.2
3 Counterfeiting 2,589 0.1 0.2 42.7 37.9
Total economic crimes 98,266 4.4 8.3 70.6 30.3
(D) Property crimes
1 Burglary 90,179 4.1 7.6 43.4 34.5
2 Theft 330,312 14.8 27.9 37.7 37.5
Total property crimes 420,491 18.9 35.5 38.9 36.7
(E) Crime against SCs
Total crime against SCs 32,712 1.5 2.8 90.7 35.0
(F) Crime against STs
Total crime against STs 5,885 0.3 0.5 96.0 25.0
(G) Crime against children
Total crime against 26,694 1.2 2.3 83.9 34.6
children
(H) Cognizable crimes under IPC
Total cognizable crimes 2,224,831 187.6 79.1 40.7
under IPC
(I) Cognizable crimes under SLL
Total cognizable crimes 4,525,917 381.7 94.7 91.7
under SLL
(J) Cognizable crimes under IPC + SLL
Total cognizable crimes 6,750,748 569.3 89.8 81.3
under IPC + SLL
Source: Crime in India, 2010, National Crime Records Bureau.
A total of 2,224,831 IPC crimes were reported in the country during the year 2010 against 2,121,345 in 2009 recording
an increase of 4.9% in 2010. The share of IPC crimes to total cognizable crimes in percentage terms increased from
36.3% in 2005 to 36.8% in 2006.The IPC Crime rate has increased by 6.2% during the decade 2000–2010 from 176.7
in 2000 to 187.6 in 2010. A total number of 241,986 violent crimes were reported in the country accounting for 10.4%
of the total IPC crimes during the year 2010. Puducherry (352.3), Kerala (424.1), Chandigarh (299.8), Madhya Pradesh
(297.2) and Delhi (279.8) and 13 more States/UTs have reported much higher crime rates as compared to the National
average of 187.6 which is higher than National average of 181.4 in 2009.
204 R. Thilagaraj
Puducherry (352.3), Kerala (424.1), damental rights under the provisions of the Indian
Chandigarh (299.8), Madhya Pradesh (297.2), constitution but also for any other rights of the
and Delhi (279.8) and 13 more states/UTs have Constitution, and it has powers to supervise over
reported much higher crime rates as compared to all its subordinate courts in the state. In fact,
the National average of 187.6 which is higher when apparently there is no effective remedy
than National average of 181.4 in 2009. The table available to a person in equity, in justice, he or
below shows the latest crime statistics as recorded she can always move to the High Court in an
by the National Crime Records Bureau. appropriate writ.
The property crimes have the highest share of Below the High court, there are subordinate
36.7% among the IPC crimes followed by crimes criminal courts under its supervision in each
against scheduled castes (SC) with a share of district. They are court of sessions and court of
35% and crimes against children with a share of judicial magistrates. These courts conduct trials in
34.6% among the IPC crimes. all matters related to all types of offenders.
However, only the session’s court has the power to
pass the sentence of death. Every district is headed
13.11 The Role of Judiciary by the Chief Judicial Magistrate who heads over
the other Judicial Magistrates, these courts being
The Indian Judicial System has the Supreme primary criminal courts, where every offender is
Court of India at its helm, which at present is first produced after arrest by the police.
located in the capital city of Delhi, without any Administration of criminal justice is carried
benches in any part of the nation, and is presided through these Magistrate-Courts and Session’s
by the Chief Justice of India. Courts. The Court at the lowest level is called
The Supreme Court of India has many Benches Judicial Magistrate of the second class. This court
for the litigation, and this apex court is not only is competent to try the case if the offence is pun-
the final court of permissible appeal but also deals ishable with imprisonment for a term not exceed-
with interstate matters, and matters comprising ing one year, or with fine not exceeding five
more than one state, and the matters between the thousand rupees, or with both. The First Class
Union Government and any one or more states, Magistrate is competent to try offences punish-
as the matters on its original side. The largest able with imprisonment for a term not exceeding
bench of the Supreme Court of India is called the 3 years or with fine up to 10,000 rupees. The
Constitution Bench and comprises 5 or 7 judges, assistant session’s judge is competent to impose
depending on the importance attached of the mat- punishments up to 10 years imprisonment and
ters before it, as well as the work load of the any fine. The session’s judge can impose any
court. The apex court comprises only various punishment authorized by law: but the sentence
benches comprising the Divisional benches of 2 of death passed by him should be subject to the
and 3 judges, and the Full benches of 3 or 5 confirmation by the high court.
judges. The Appeals to this court are allowed
from the High Court, only after the matter is
deemed to be important enough on the point of 13.12 Function of Court
law or on the subject of the constitution of the
nation, and is certified as such by the relevant The high court may empower magistrates of first
High Court. class to try certain offences in a summary way.
Every State has a High Court, which works Second class magistrates can summarily try an
under the direct guidance and supervision of the offence only if punishable only with a fine or
Supreme Court of India, and is the uppermost imprisonment for a term not exceeding six
court in that state. The High Courts are also months. In a summary trial, no sentence of
termed as the courts of equity, and can be imprisonment for a term exceeding three months
approached in writs not only for violation of fun- can be passed in any conviction. The particulars
13 Criminal Justice System in India 205
of the summary trial are entered in the record of follows: “When any person is sentenced to death,
the court. In every case tried summarily in which the death sentence shall direct that he be hanged
the accused does not plead guilty, the magistrate by the neck till he is dead.” This provision has
records the substance of the evidence and a judg- been retained in Section 354 (5) of Cr.P.C. of
ment containing a brief statement of the reasons 1973. The Supreme Court of India ruled in 1983
for the finding. Trial is the judicial adjudication that the death penalty should be imposed only in
of a person’s guilt or innocence. Under the “the rarest of rare cases.” Capital crimes are mur-
Criminal Procedure Code (Cr.P.C.), criminal tri- der, gang robbery with murder, abetting the sui-
als have been categorized into three divisions cide of a child or an insane person, waging war
having different procedures, called warrant, sum- against the nation, and abetting mutiny by a mem-
mons, and summary trials. A warrant case relates ber of the armed forces. According to Amnesty
to offences punishable with death, imprisonment International 2012, for the seventh consecutive
for life, or imprisonment for a term exceeding year India did not carry out any executions, but at
two years. least 110 new death sentences were imposed in
A summons case means a case relating to an 2011, bringing the total number of people believed
offence not being a warrant case, implying all to be under sentence of death at the end of 2011 to
cases relating to offences punishable with impris- between 400 and 500.
onment not exceeding 2 years. In respect of sum- Several mercy petitions were rejected by the
mons cases, there is no need to frame a charge. President in 2011. However, executions in those
The court gives substance of the accusation, cases were suspended by courts to allow for the
which is called “notice,” to the accused when the consideration of separate legal challenges on the
person appears in pursuance to the summons. delay in the decision of the mercy petitions, and
the constitutionality of the prolonged stay on
death row. On 16 June 2011, the Mumbai High
13.13 Public Prosecution Court found that the mandatory imposition of the
death penalty under Section 31-A of the Narcotic
In India there is a public prosecution system to Drugs and Psychotropic Substances Act, 1985,
prosecute the offenders. The Cr.P.C. provides for violated Article 21 of the Constitution of India,
the appointment of public prosecutors in the High and ruled that it be changed to give judges a dis-
courts and District Courts. They are officials cretionary choice of punishment. Following the
assisting the criminal courts by placing before judgment, engaging in the production, manufac-
the courts all the relevant aspects of the case. The ture, possession, transportation, import into India,
public prosecutor acts in accordance with the export from India, or transshipment of narcotic
directions of the judge (Thilagaraj and drugs as well as financing, directly or indirectly,
Varadharajan 2000). The control of the trial is in any of these activities are offences that are pun-
the hands of the trial judge of the criminal court. ishable by death at the discretion of the judge. In
Investigation is the prerogative of the Police and December 2011, the Indian Parliament approved
the Public Prosecutor is believed to represent the legislation making acts of terrorism aimed at sab-
public interest (Chandrasekharan 2008). He is otaging oil and gas pipelines punishable by death,
supposed to lead evidence favorable to the in cases where the act of sabotage is likely to
accused for the benefit of the court. cause death of any other person.
In India, over a 100 years, the mode of death pen- Lok Adalats which are voluntary agencies are
alty has remained the same. Section 368 (1) of the monitored by the State Legal Aid and Advice
Code of Criminal Procedure, 1898, provides as Boards. They have proved to be a successful
206 R. Thilagaraj
alternative forum for resolving of disputes Adalat became enforceable after the endorsement
through the conciliatory method. of the concerned court.
The Legal Services Authorities Act, 1987,
provides statutory status to the legal aid move-
ment and it also provides for setting up of Legal 13.17 Correctional Administration
Services Authorities at the Central, State, and in India
District levels. These authorities will have their
own funds. Further, Lok Adalats which are at In India over one million criminal cases are
present informal agencies will acquire statutory reported every year. Each annual incidence of
status. Every award of Lok Adalats shall be crime in the country necessitates the existence
deemed to be a decree of a civil court or order of of a huge network of prisons and other institu-
a Tribunal and shall be final and binding on the tions of correctional administration. In India
parties to the dispute. It also provides that in the number of prison inmates per million of
respect of cases decided at a Lok Adalat, the court population is one of the lowest in the world.
fee paid by the parties will be refunded. There are a total of 1,393 prisons of different
categories and sizes, with an authorized inmate
capacity of 320,450.
13.16 Alternate Dispute Resolution
ADR has emerged in India in the middle nineties 13.18 Prison Statistics in India
due to the inordinate delay in disposal of cases
resulting in docket explosion. In the place of Total number of jails in the country: 1,393
Restorative Justice in other countries, India has Types of jails Strength
Alternate Dispute Resolution. The privatization Central jails 123
and structural adjustment policies in Post India District jails 322
legal system resulted in our thinking to find out Sub jails 836
ways and means to explore the quick and inex- Women jails 18
pensive ways to resolve the disputes without each Open jails 44
and every case subjecting to the full Court pro- Borstal schools 21
cesses. The Arbitration and Conciliation Act of Special jails 26
1996 explains various forms of Alternate Dispute Other jails 3
Resolution. Source: Crime in India, 2010, National Crime Records
The most commonly known methods are medi- Bureau.
ation, conciliation, and arbitration. These methods Total capacity of jails in the country: 320,450
have been widely used not only to resolve disputes Types of jails Capacity
in commercial cases but also in a number of other Central jails 138,737 (43.3%)
noncommercial cases as well. Various disputes District jails 118,388 (36.9%)
arise every day. ADR methods are the non-litiga- Sub-jails 47,499 (14.8%)
tive dispute resolution strategies for resolving the Women jails 3,600 (1.1%)
disputes outside the court premises. Lok Adalat is Open jails 3,451 (1.1%)
one of the ADRs. It is one of the strategies for Borstal schools 2,240 (0.7%)
early settlement of disputes, particularly in per- Special jails 6,037 (1.9%)
sonal injury compensation. Legal aid programme Other jails 323 (0.1%)
was provided in the year 1980 by the committee Source: Crime in India, 2010, National Crime Records
for implementation of Legal Aid Schemes (CLIAS) Bureau.
in holding Lok Adalatas for settlement of disputes Total number of jail inmates as on 31.12.2010:
through conciliation. It has become popular for 368,998
pre-litigation settlement and the decision of Lok Male: 353,961 (95.9%) Female: 15,037 (4.1%)
13 Criminal Justice System in India 207
are acting as a bridge between the prisoners and police woman or other women authorized by the
the community (Trivedi 1987). These services Government. Whenever, women are detained or
are offered to the prisoners on their release to kept in custody, in addition to basic amenity and
reintegrate in the main stem of social life. The privacy, the prison administration makes every
Prison Departments are also providing tool kits effort to provide the essentials for meeting the
of trades to released prisoners to achieve self- women special needs. Welfare of children is a
employment. relevant consideration in the sentencing and dis-
position of women and every effort is made to
ensure that the children enjoy protection from the
13.21 Modernization of Prisons detrimental effect of their mothers’ arrest and
incarceration. Earlier, women prisoners were
It has been mentioned earlier that, though prisons mostly given vocational training in sewing and
are primarily the concern of the respective State knitting. Now, efforts are being made to give
Governments, the federal Government has come them options of other vocations and activities.
up with the offer of substantial help to improve They are paid minimum standard wages laid
the conditions in prisons. The federal government down in the Prison Manuals for their work.
proposes to spend 18,000 million rupees on While, it has not been possible to set up sepa-
improving the conditions in prisons which include rate prison for women in every State of the coun-
construction of new prisons, expansion and reno- try, there are 12 exclusive prisons for women
vation of existing prisons, construction of houses with an inmate capacity of 2010. Wherever sepa-
for prison personnel, and construction of new rate prisons for women do not exist, the prisons
prisons and improving the sanitation and water have separate wards for them which are guarded
supply in prisons (Chauhan and Srivastava 2011). by female correctional personnel.
Out of this total outlay, the States are expected to
contribute 25% from their own fiscal resources.
13.23 Open Air Prisons
Offenders Act 1958. Young offenders and offend- The framework of the reenacted law provides
ers who have not committed serious offences for “Juvenile Justice Boards” in place of earlier
are released on probation based on their pre- Juvenile Courts and “Child Welfare Committees”
sentence investigation report of the probation in place of Juvenile Welfare Boards. These are
officer. The probation officer plays a major role the legal bodies, called Competent Authorities,
in reforming the offender in the community with for trial or proceedings of “Juveniles in Conflict
the support of family members of the offender, with Law” and “Children in Need of Care and
his or her employer, NGOs, and other stake- Protection,” respectively. The Act provides for
holders. However the judiciary has an inimical the multiple roles of social workers and voluntary
attitude towards probation and hence the number organizations at various levels. Besides, the Act
of probationers has been declining in the past has highly innovative provisions for the social
years (Chakrabarthi 1999). reintegration of these children through the inte-
grated institutional and noninstitutional care sys-
tems of adoption, foster care, and sponsorship
13.25 Parole programmes (Thilagaraj 1988).
and fragmented measures taken for the care and compensatory remedies not only in terms of
the welfare of delinquent and neglected juveniles monetary but also in terms of other appropriate
are bound to malfunction in the absence of a relief and remedies to victims of crime. Bhopal
holistic approach to the problem of juvenile Union Carbide Gas tragedy victims are examples
social maladjustment. of relief and remedies forged by the Apex Court.
In the case of Abuse of Power by police, the
Supreme Court ordered for victim compensation
13.28 Judicial Review and Criminal by state and restitution by the alleged police
Justice Administration officer. In another case, the High Court has held
that the Criminal Justice System is not penal code
Never before in its history was criminal justice alone, and that it is restitutive justice too.
administration in India subjected to such a criti-
cal review by the Highest Court in the country as
in the last few decades. Discarding its erstwhile 13.29 Conclusion
“hands off doctrine towards prisons,” the Supreme
Court of India came strongly in favor of judicial The criminal Justice system is, at present, a
scrutiny and intervention whenever the rights of complex of different agencies working at cross
prisoners in detention or custody were found to purposes. The delivery of justice is delayed
have been infringed upon. In Sunil Batra vs. and, at times, leads to miscarriage of the legal
Delhi Administration and Others (1980), Mr process. The current status of the Criminal
Justice V.R. Krishna Iyer pronounced: “prisoners Justice system throws many challenges to the
have enforceable liberties, devalued may be but government. But the Indian criminal justice
not demonetized; and under our basic scheme. system suffers from serious underfunding and
Prison Power must bow before Judge Power, if understaffing, and continues to be extremely
fundamental freedoms are in jeopardy.” Again in slow. As in every democratic civilized society,
Sunil Batra vs. Delhi Administration (1979), the this system is expected to provide the maxi-
Court asked and affirmed: “Are prisoner’s per- mum sense of security to the people at large by
sons? Yes, of course. To answer in the negative is dealing with crimes and criminals effectively,
to convict the nation and the Constitution of quickly, and legally. More specifically, the aim
dehumanization and to repudiate the world legal is to reduce the level of criminality in society
order, which now recognizes rights of prisoners by ensuring maximum detection of reported
in the International Covenant on Prisoners’ Rights crimes, conviction of the accused persons with-
to which our country has signed assent.” These out delay, awarding of appropriate punishments
and several other judicial pronouncements have to the convicted to meet the ends of justice, and
set into motion a series of prison reforms all over prevention of recidivism.
the country. Some of the recent developments that have
For the undue arrest and harassment by the taken place during the last few years in the judi-
police there had been a number of cases in the cial delivery system to seek redress and accord
Supreme Court. The Supreme Court had laid justice to the poor are worth mentioning. The
down guidelines governing arrest of a person importance of these developments to the delivery
during investigation. This has been done with a system of justice cannot be ignored. They have
view to strike a balance between the needs of revolutionized our judicial jurisprudence and will
Police on one hand and protection of Human go a long way in giving relief to the large masses
Rights of citizens from oppression and injustice and the common man. Efforts of the superior
at the hands of the Law Enforcement Agencies courts of the country to provide new contents to
on the other hand. criminal justice have also resulted in paradigm
The Supreme Court and High Courts in India shifts in prison reforms, treatment of under-trials,
have of late evolved the practice of awarding and rehabilitation of victims.
13 Criminal Justice System in India 211
Tokikazu Konishi
the first and second times are also still flowing its influence on the current criminal justice in
there. Japan. Next, in Sect. 14.3, we will probe into the
We can examine general trends in criminal process and effects of the transplantation of the
justice and criminology in Asia following this modern Western European criminal laws and
anthropological notion. Of course, this viewpoint social sciences into Japan. After that, in Sect. 14.4,
is also applicable to the nature of criminal justice we will examine criminal justice system and
and the ways of understanding crime phenomena, criminological thoughts in the post-World War
including criminological perspectives, in the par- II Japan, characteristics of crime phenomena in
ticular case of Japan. In discussing the significance its society, and then the contemporary altera-
of Asian criminology, a key feature of Asian culture tion of criminal justice policy since the dawn of
is described as diversity (Liu 2009). Language, a new millennium. Finally, in the conclusion in
religion, family structure, and other cultural ele- Sect. 14.5, it will be argued that both the crimi-
ments vary greatly in Asian societies. We will see nal justice system and criminological ideolo-
that this diversity also exists in the nature of gies in an Asian country such as Japan are
criminal justice and the ways of understanding diverse enough to achieve dynamic internal
crime phenomena in Japan, based on the view- development.
point presented above.
In this chapter, according to the above-men-
tioned “four types of time,” we will examine 14.2 Chinese Penal Codes and Their
Japanese criminal justice and criminology from a Original Development in Japan
historical perspective from four angles. First, in
Japan, the legal consciousness connected to The Eastern area of the Eurasian continent and
native laws underlies the present criminal justice the surrounding islands, including Japan, has
system and the legal notions in these laws leave been called the “Far East” (of course, this is
their mark on the understanding of crime phe- appropriate only if it is viewed from a European
nomena. Second, in ancient Japan, after the or American point of view). Geographically,
period of native laws, penal codes and other legal Japan is located at the end of the Asian region,
systems were imported mainly from China and or even at the end of the world. Therefore, his-
incorporated into Japanese society. The traits that torically, the “waves” of civilizations around the
emerged in those years also remain in current world had finally reached that end—Japan. It
criminal justice in Japan. Third, after the penal has been said that, due to this geographical situ-
codes modeled after those of China developed ation, the Japanese have a tendency to respect
independently and strayed from the original style foreign cultures. In ancient times, the ancient
over time, in the process of modernization that Chinese and Indian civilizations were universal
had started at about 150 ago, the government throughout the Asian region. They extended into
transplanted the Western European criminal every part of this region, which had also pos-
laws and social sciences into Japan. This formed sessed many other native cultures. These civili-
a foundation for present-day criminal justice zations finally found their way into Japan as
and criminology. Fourth, in contemporary well and took root in Japanese soil. At the begin-
Japan, since the end of World War II, criminal ning of this section, we will discuss the native
justice and criminology have become highly cultures in Japan. According to the above-men-
Americanized. tioned division of the “four types of time,” this
Considering this four-part division of time, in sort of culture represents the “indigenous” time.
Sect. 14.2, the legal consciousness connected After this discussion, the influence of the
with native laws and the legal notion of these Chinese and Indian civilizations on Japan will
laws will be examined. Moreover, we will ana- be examined. The legacies of these civilizations
lyze the history of the import of Chinese penal correspond to the “Asian” time. Finally, we
codes and their original development, and show will describe the unique developments of these
14 Diversity Within an Asian Country: Japanese Criminal Justice and Criminology 215
civilizations in Japan. The heritage of these introduced into Japan, and in 702, Japanese
developments can be categorized as a part of the penal codes modeled after the Chinese codes
“historical” time. were put into effect. Interestingly, however,
compared with the original penal codes in China,
punishment in Japan’s codes was relatively
14.2.1 Japanese Indigenous Time lenient.
consider the two disciplines of “criminal policy” on exhaustive criminal investigations, which
and “criminology” comprehensively. Thus, sim- depend chiefly upon interrogations. Moreover,
ply on the basis of the facts discovered through the clearance rate for crimes seems to be rela-
criminological inquiry, we can make a normative tively high: 51.7% for penal code offenses in
decision and present an ideal alternative in our 2009 (Research and Training Institute, Ministry
discussion of criminal policy. of Justice 2010). In Japan, this rate refers to the
Indeed, this controversy reflects a greater percentage of cases referred to public prosecutors
conflict between the European-style “criminal or disposed as trivial offenses by the police or
policy (Kriminalpolitik)” discipline and the other investigative authorities, given the number
American-style discipline of “criminology,” par- of reported cases.
ticularly “sociological criminology.” After World In contrast, in the criminal trial process, it
War II, Japanese society faced the Americanization should be noted that the rate of judgment of not
of cultures. We can see this period as a contem- guilty is extremely low. In fact, that rate was only
porary time, or an “American” time. Japanese 0.01% in 2009 (Research and Training Institute,
society has accepted Americanization for more Ministry of Justice 2010). The reasons for this
than half a century and is currently part of global extremely low rate are often questioned and criti-
and universal cultures. cized by foreign researchers. The background
This process can be seen in the legal system as behind this at first shocking number is the high
well. Influenced by American laws, the govern- rate of suspension of prosecutions by public pros-
ment enacted the Code of Criminal Procedure of ecutors; 52.1% of persons finally disposed in
1948 and the Juvenile Act of 1948, and partly public prosecutor’s offices in 2009 (Research and
revised the Penal Code of 1907. The enactment Training Institute, Ministry of Justice 2010).
and revision were conducted under the new Public prosecutors have enormous power in the
Japanese Constitution, which emphasizes due Japanese criminal justice system, and they can
process of law and the individual instead of the exercise considerable discretion in choosing
nation. whether they prosecute a criminal or not. In fact,
However, due to the historical layering they prosecute only the accused who they are
described above, these criminal laws and crimi- firmly convinced must be convicted and pun-
nal procedure laws can, in fact, be at odds with ished. Most of the accused can escape from pros-
each other. The current Penal Code has been uti- ecution, even if there is sufficient evidence to
lized since its establishment in 1907. In this prove their guilt. Sociologist David T. Johnson
Japanese criminal law, derived from Germany’s (2002) noted that suspension of prosecution
legal system, subjective elements (e.g., criminal “does fit well with other features of Japanese cul-
intent) are emphasized. In contrast, objective ele- ture, especially the propensity for wrongdoers to
ments (e.g., physical evidence) are intrinsically confess and the disposition to believe that people
stressed in the Japanese criminal procedure law, are ‘perfectible’ through social engineering” (p.
which was derived from the legal system of the 108). Thus, the Japanese criminal justice system
United States. has been characterized as “prosecutorial justice”
Legal professor Koya Matsuo has cited “min- (Mitsui 1980). Nonetheless, this considerable
ute justice” as a characteristic of Japanese crimi- power triggered a shameful scandal in 2010 (The
nal justice (Matsuo 1994). In the criminal Asahi Shimbun 2010) in which organized evi-
procedure of Japan, every party involved strongly dence tampering by public prosecutors was
desires to elucidate the truth of the case in ques- detected. After this incident, reforms of the pub-
tion. It is believed that the elucidation of the truth lic prosecutor’s office have begun in Japan.
through scrupulous examination and the defen- On top of the high rate of prosecution suspension,
dant’s confession of his/her guilt is at the core of we also find that the rate of suspension of sen-
a criminal trial. In the process of criminal investi- tence execution is also high. In 2009, suspended
gation in Japan, law enforcement agencies take execution rates were 58.0% for imprisonment
218 T. Konishi
Society
with labor for a limited term and 94.3% for degrees in behavioral sciences such as psychol-
imprisonment without labor for a limited term ogy and sociology, most Japanese “criminolo-
(Research and Training Institute, Ministry of gists” have graduated from and belong to schools
Justice 2010). In this manner, there is a variety of of law. This further reflects the dilemma between
diversion paths in the Japanese criminal justice the European-style “criminal policy” discipline
system (Fig. 14.1). In light of these possibilities, and American-style “criminology.”
Daniel H. Foote (1992) has characterized the
Japanese criminal justice as a kind of “benevo-
lent paternalism.” 14.4.2 Crime in Post-war Japan
Alongside the development of this uniquely
Japanese criminal justice system after World War If we turn our attention to the characteristics of
II, Japan also developed its own literature in crime in Japan, we find that foreign researchers
criminology. The national research institutes have generally been interested in the low com-
related to criminology, such as the National mon crime rate in post-war industrialized
Research Institute of Police Science at the Japanese society. As Pontell and Geis (2007)
National Police Agency and the Research and noted, the “low crime rate in postwar World War
Training Institute at the Ministry of Justice, estab- II Japan has challenged the interpretative skills of
lished in post-war Japan, have played an impor- a considerable cadre of western analysts and
tant role in the criminological academe. These brought into question many conditions usually
institutes’ researchers have effectively learned positively correlated with crime” (p. 103). In fact,
American criminology and presented it to aca- compared to the number of reported cases, crime
demic society in Japan. rates, and clearance rates for homicide and theft
After World War II, psychological and socio- in five major industrialized countries—Japan,
logical approaches to understanding crime phe- France, Germany, the UK, and the US—the rates
nomena became prepotent in Japan, prompting in Japan are the lowest, as seen in Table 14.1. Of
the formation of the Japanese Association of course, the definitions constituting these rates do
Criminal Psychology in 1963 and the Japanese not correspond exactly among these countries, so
Association of Sociological Criminology in 1974. this comparison is not as accurate as one would
Japanese psychological and sociological research- hope.
ers have tried to apply American theories to It has been thought that people control them-
crimes and society in Japan with American meth- selves informally and thereby reduce the inci-
ods. Interestingly, however, in contrast to dence of crime in Japanese society. Referring to
American criminologists, most of whom hold the high level of interdependence and the highly
14 Diversity Within an Asian Country: Japanese Criminal Justice and Criminology 219
Table 14.1 Number of reported cases, crime rate, and clearance rate for homicide and theft in Japan, France,
Germany, the UK, and the US in 2008 (Research and Training Institute, Ministry of Justice 2010)
Category Japan France Germany UK US
Homicide
Reported cases 1,341 1,899 2,266 1,238 16,272
Crime rate 1.1 3.1 2.8 2.3 5.4
Clearance rate (%) 95.4 87.5 97.0 83.6 63.6
Theft
Reported cases 1,372,840 1,699,243 2,443,280 2,242,718 9,767,915
Crime rate 1,075 2,746 2,972 4,120 3,212
Clearance rate (%) 27.7 13.2 29.8 18.2 17.4
Note: 1. “Number of Reported Cases” refers to the number of cases whose occurrence came to be known to the
police or other investigative authorities through incident reports, complaints, charges, or some other cause
2. “Crime Rate” refers to the number of reported cases per 100,000 persons
3. “Clearance Rate” refers to the percentage of cleared cases given the number of reported cases
developed communitarian ideal in Japan, John Recently, the government and scholars alike
Braithwaite (1989) has proposed a model strat- have sought to lower the high re-imprisonment
egy for crime control. This strategy is called the rate. The rate of re-imprisonment within 10 years
reintegrative shaming theory, which proposes of release from prison was 53.6% in 2009
that people can reintegrate a criminal back into (Research and Training Institute, Ministry of
their society through shaming him/her. In the Justice 2010). Most inmates who are re-impris-
case of Japan, a spirit of Shintoism lies behind oned have committed theft or violated controlled
such an attitude. Thus, some components of substances regulations; in Japan, the main drug
restorative justice seem to have existed originally offense is the illegal use and distribution of meth-
in Japanese society. For instance, in Japan, the amphetamine. Therefore, the most problematic
role of volunteer probation officers is critical in illegal drug type in Japan is different from many
the community-based treatment of offenders, as other countries, and we must devise and develop
they are important in promoting reconciliation more effective therapeutic methods for metham-
between ex-criminals and the communities to phetamine-dependent offenders.
which they belong. Elderly and intellectually disabled people
Nonetheless, some researchers have also have turned out to make up a significant portion
pointed out that the white-collar crime rate in of the offenders who committed theft. Families
Japanese society has the potential to be quite high and communities are said to be losing the tradi-
(Pontell and Geis 2007). Thus, it is said that there tional strong bonds in contemporary Japanese
is “a ubiquitous climate of corruption” in Japan society. As a result, crimes by elderly people are
(Fisher 1980, p. 222). For example, in Japan it is sharply increasing. Some prisons in Japan look
common for failing companies to become like nursing homes. Thus, building up closer con-
involved in window-dressing accounting in order nections between the criminal justice system and
to avoid bankruptcy (Konishi 2010). The history social welfare is indispensable. It may be neces-
of corporate accounting scandals in Japan after sary to establish a diversion program targeted at
World War II can be divided into three periods: elderly and intellectually disabled criminals in
“the ‘normalization’ of window-dressing account- the criminal justice system. Through this pro-
ing up to the 1960s, their ‘enlargement’ in the gram, they could be diverted from the criminal
1970s and 1980s, and the ‘diversification of pur- justice system in its investigation, prosecution, or
pose’ of window-dressing accounting after the court processes and instead treated within the
1990s” (Konishi 2010, p. 101; Suda 2007). social welfare system.
220 T. Konishi
14.4.3 Altering Legislative Policies on and the Juvenile Act were all revised to a large
Crime and Punishment extent. In 2010, for instance, the limitation on
prosecution of the crimes in which a person is
Prominent Japanese law professor Koya Matsuo killed in the Code of Criminal Procedure and the
(1981) once imagined criminal justice policy in limitation on punishment in the Penal Code were
Japan as analogous to a mythical world in ancient both revised. Through these revisions, parts of
Egypt: “while the legislator keeps silent as if it the limitations on prosecution and punishment
were a pyramid, the judiciary rouses up as if it were abolished. New basic laws concerning the
were a sphinx.” As suggested by this remark, treatment of offenders in institutions and com-
criminal legislation in Japan has been sluggish munities—the Act on Penal Detention Facilities
for a number of years. Instead, courts have con- and Treatment of Inmates and Detainees and the
tributed to rule-making or even policymaking Offenders Rehabilitation Act—were enacted in
through the formation of precedents. 2006 and 2007.
For example, the Supreme Court standardized Like in other countries, we can observe
the application of the death penalty through the a “penal populism” (Pratt 2007), or a populist
formation of precedents. In Japanese criminal criminal policy, in Japan. Behind the scenes,
law, judges are given broad latitude in sentencing there are a variety of factors, such as the develop-
and there is no codified guiding principle, such as ment of information technologies and the decline
sentencing guidelines. The Supreme Court’s of the status of professionals on crime. Salient
decision on the Nagayama case in 1983, among criminal cases, in particular, have had a vast
others, is well known as a significant judicial impact on speed-before-quality legislation. In the
precedent for the application standard for the aftermath of these cases, the mass media have
death penalty. In this decision, indifferent to pub- urged legislators toward rapid enactment. As
lic opinion, the Supreme Court made the standard Stolz (2002) has noted, in symbolic politics,
relatively restrained. Consequently, in accordance criminal laws can function symbolically in all
with this standard, the courts have thoroughly three branches of government. For example,
taken into account matters favorable to the recently, the number of capital sentences has
accused in subsequent capital cases and thereby increased in Japan. As a result of having come to
controlled the number of capital sentences. care about the “public’s confidence in the judi-
In another example, the Juvenile Act of 1948 ciary” (Judicial Reform Council, Cabinet 2001,
contains the concept of the “pre-delinquent juve- p. 41; General Secretariat, Supreme Court of
nile” (Konishi 2007). However, this concept is Japan 2008), the courts appear to have twisted the
highly ambiguous, and the courts have applied application standard of the death penalty, which
this concept to juvenile cases in a very limited had been established through the foregoing
way. On the other hand, for more than half a cen- Supreme Court’s decision. The courts seek to
tury, lawmakers have not attempted to redefine its earn the “public’s confidence in the judiciary”
meaning through any revision of the Juvenile through responding to the public’s request for
Act. more severe punishments and more death
Despite these setbacks, criminal legislation sentences.
has been actively created in Japan since around As one of the background factors in this dras-
the turn of the twenty-first century. Public opin- tic change, there has been a mobilization of the
ion has brought powerful direct pressure on crim- victim’s rights movement in Japanese society. In
inal justice policy in Japan since the late twentieth Japan, victimology attracted public attention
century. As a result, punishment and other sanc- throughout the 1990s. In 1990, the academic
tions against criminals have gotten harsher in society of victimology, the Japanese Association
criminal legislation and judgment. Recently, of Victimology, was founded, and the National
criminal legislation has advanced impressively. Association of Crime Victims and Surviving
The Penal Code, the Code of Criminal Procedure, Families was created in 2000.
14 Diversity Within an Asian Country: Japanese Criminal Justice and Criminology 221
Moreover, the public has come to play a General Secretariat, Supreme Court of Japan. (2008).
significant role in the Japanese criminal justice Justice in Japan. Tokyo: Hoso Kai (Lawyers
Association).
system, as public opinion has a continuous and Ishizuka, S. (1996). Keiji-seisaku no paradaimu tenkan:
potent influence on criminal justice. Currently, Shimin no shimin ni yoru shimin no tameno keiji-sei-
people can participate directly in criminal proce- saku [Paradigm shift in criminal policy: Criminal
dures. The lay judge system started in 2009. That policy of citizens, by citizens, for citizens]. Tokyo:
Gendaijinbunsha.
same year, the Committees for the Inquest of Johnson, D. T. (2002). The Japanese way of justice:
Prosecution, which consists of ordinary citizens, Prosecuting crime in Japan. New York, NY: Oxford
obtained the power to prosecute criminals whose University Press.
cases have been dropped by a public prosecutor. Judicial Reform Council, Cabinet. (2001). Shihou-seido-
kaikaku-shingikai ikensho: 21-seiki no nihon o sasaeru
In addition, since 2008, victims or their family shihouseido [Recommendations of the Judicial Reform
members can participate in trial proceedings. In Council: For a judicial system to support Japan in the
these ways, public opinion and the citizens’ 21st century]. Tokyo: Judicial Reform Council,
movement of crime victims and their family Cabinet.
Konishi, T. (2007). On the concept of the pre-delinquent
members have wielded powerful direct influence juvenile in Japan: Its construction and the impact.
over criminal justice policy in Japan. Waseda Bulletin of Comparative Law, 25, 1–18.
Konishi, T. (2010). Fraud by certified public accountants
in Japan and the United States. Asian Journal of
Criminology, 5(2), 99–107.
14.5 Conclusion Liu, J. (2009). Asian criminology—Challenges, opportu-
nities, and directions. Asian Journal of Criminology,
We can describe the above-mentioned phenom- 4(1), 1–9.
ena in Japanese criminal justice and criminol- Matsuo, K. (1981). Dai-4-han no kankou ni atatte [Preface
to the fourth edition]. In R. Hirano, K. Matsuo, & H.
ogy as a “multilayered history.” Through this Tamiya (Eds.), Keiji-soshouhou hanrei hyakusen
type of history, a variety of experiences and [One-hundred selected cases in criminal procedure
values have accumulated in Japanese society. law] (4th ed., p. 9). Tokyo: Yuhikaku.
Of course, such an accumulation of different Matsuo, K. (1994). Keiji-soshou no nihonteki-tokushoku:
Iwayuru moderu-ron tomo kanren shite [Japanese
experiences and values can include internal characteristics of criminal procedure: Being also
conflict. This is what makes a dynamic and linked to the so-called “model theory”]. Hoso Jiho,
engaged society. 46(7), 1–30.
Recently, criminologists have been paying Mitsui, M. (1980). Keiji-soshouhou shikou sanju-nen to
“kensatsukan-shihou” [Thirty years of enforcement
keen attention to Asian criminology (Liu 2009). of the Code of Criminal Procedure, and “prosecuto-
Japan is positioned as a part of Asia; this, Japanese rial justice”]. In S. Sasaki, K. Kawakami, & H.
criminology can be examined as a part of Asian Tamiya (Eds.), Keiji-soshouhou no riron to jitsumu:
criminology, which is rich in its diversity and Shikou sanju-nen no sou-kentou [The theory and
practice of criminal procedure law: Comprehensive
contains all of the necessary dynamics for further examinations on thirty years of enforcement of the
development. Code of Criminal Procedure] (pp. 37–40). Tokyo:
Hanrei Times.
Pontell, H., & Geis, G. (2007). The paradox of economic
crime in Japan: The thalidomide scourge, the Lockheed
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222 T. Konishi
Suda, K. (2007). Funshoku-kessan to kaikei-sousa no sho- zan-yougi [Arresting a senior public prosecutor of the
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shunin-kenji o taiho: Yubin-fusei oushu-shiryou-kai- Germany: Mohr (Original work published 1918).
Development of Criminology
in Japan from a Sociological 15
Perspective
Minoru Yokoyama
the theories on sociology developed in European prostitutes soliciting on the street3. By the use
countries, especially Germany. of violence to maintain order in a chaotic area,
Around 1922 Shotaro Yoneda, a sociologist, Boryokudan, that is, Japanese mafia groups,
introduced the theory on criminology advocated developed (Yokoyama 1999, p.138).
by Emile Durkheim, and analyzed female shop- To analyze social problems at that time, Tatsuo
lifters and the intellectually handicapped crimi- Takenaka carried out research on prostitution, the
nals (Iwai et al. 1975, p. 203). result of which was published in 1949. Hiroaki
In Japan criminology from sociological per- Iwai researched on activities of Tekiya, the street
spectives has been called sociological criminol- stalls, one kind of Boryokudan. His report was
ogy. The first book entitled “Sociological published in Shakaigaku Hyoron, a journal of the
Criminology” was written by Jyunko Tatsumizu Japan Sociological Society, Vol. 1, No. 1 in 1950.
in 1922 (Iwai et al. 1975, p. 203). A book enti- His famous book entitled “Structure of
tled Sociological Criminology written by Enrico Pathological Groups” was published in 1963.
Ferri, a criminologist in Italian Positivism In such a context sociologists became inter-
School, was translated by Kichihiko Yamada ested in research on crimes. Then, a session on
and published in 1923. Since then the term “Issues of Sociological Criminology” was held
sociological criminology has been used in for the first time at the annual meeting of the
Japan. Japan Sociological Society in 1951.
After the finish of the war in August in 1945 Soon after the war we witnessed many poor juve-
Japan was democratized under the guidance of niles, especially orphans, committing crimes
the Allied Powers, in which the United States (Yokoyama 2002, p. 329). Many sociologists
took the initiative. With democratization the began to be interested in phenomena of juvenile
freedom to study and research was completely delinquency as the serious social problem.
guaranteed, under which sociological study In 1948 the new Juvenile Law was enacted, under
has developed. Many scholars began to learn which a family court and the Juvenile Classification
sociology and criminology as it had developed and Detention Center were introduced. The next
in the western countries, especially the United year the Law for Prevention and Rehabilitation of
Sates. Translations of books on sociology and Criminals was proclaimed, by which the system of
criminology into Japanese were commonplace. probation and parole was defined. Then, the current
These translated books were helpful for young juvenile justice system was established.
scholars to study sociology and criminology. After the establishment of this system many of
those who learned sociology and behavioral sci-
ences became probation officers at the family court,
15.3 Development of Sociological specialists in researching juvenile’s disposition, and
Criminology After World War II probation and parole officers affiliated with the
Ministry of Justice. Together with such specialists,
Soon after the war Japanese lived in a chaotic sociologists developed sociological criminology.
society, where we suffered absolute poverty.
There were many property crimes owing to the 3
The Prostitution Prevention Law was enacted in 1958 by
poverty especially in cities, where black mar- the initiative of female Diet members (Yokoyama 1993).
After the enforcement of this law prostitutes soliciting on
kets appeared to supply many goods, even daily the street ended, because the solicitation on the street was
living necessaries. Many poor women became criminalized (Yokoyama 1995, p. 50).
15 Development of Criminology in Japan from a Sociological Perspective 225
Judges at the Supreme Court and family tical methods on criminology in Japan,
courts were earnest about realizing purposes although Japanese criminologists and practi-
defined by the new Juvenile Law of 1948. Under tioners could not develop the complete scale.
the aegis of the Supreme Court the Study In the late 1950s we enjoyed high economic
Meeting on Protection of Youngsters was orga- growth with modern industrialization. During this
nized in 1951, in which such sociologists as period sociology influenced by the United States
Koji Kashikuma, Kizaemon Ariga, Tatsumi developed, while Marxist sociology became popu-
Makino, and Hiroaki Iwai participated (Iwai lar under the surge of leftists’ movement, especially
et al. 1975, p. 203). At the same time Tatsumi the movement of labor unions. As a kind of branch
Makino, Koji Kashikuma, Hiroaki Iwai, Kosaku of sociology, criminological sociology progressed.
Matsuura, and Soichi Nasu founded the Group Around 1961 Tatsumi Makino organized the
to Study Sociological Criminology, which I also Study Group on Teaching Youngsters. Under his
joined in 1969. At that time many sociologists guidance some young scholars studying sociological
researched on juvenile delinquents mainly from pedagogy like Kanehiro Hoshino became interested
the viewpoint of family background and in issues of juvenile delinquency. They have contrib-
community. uted to the development of the research on juvenile
A typical research project from the viewpoint delinquency from the sociological viewpoint.
of the community was conducted by Kosaku
Matsuura and Koji Kashikuma. Under their
leadership members of the Group to Study
Sociological Criminology in corporation with 15.5 Development of Two Research
probation officers at Tokyo Family Court car- Institutions
ried out the research twice to analyze the rela-
tion between juvenile delinquents and the In 1948 the Research Institute for Scientific
community. They used a method of dot mapping Investigation was established, which was renamed
after the example of the research on the delin- the National Research Institute of Police Science
quency area by Clifford Shaw and Henry McKay in 1959. At the same time the institute founded
on the basis of the social disorganization theory. two departments, that is, a department for crime
They researched 7,999 and 15,229 juveniles prevention and juveniles and that for traffic
whom Tokyo Family Court disposed of in 1953 offenses, in which specialist researchers in behav-
and in 1956, respectively (Kuroda 1975, p. 62). ioral sciences began to work. Researchers such as
They found that there was no delinquency area Kanehiro Hoshino and Yoshio Matsumoto con-
in Tokyo from the viewpoint of juveniles’ resi- tributed to the development of sociological
dence. On the other hand, juveniles went to criminology.
amusement areas to commit delinquency. Their The Ministry of Justice had a training insti-
research was the first full-scale research from tute for legal affairs, which was renamed the
the ecological viewpoint. Total Institute for Legal Affairs in 1959. Not
At that time the prediction of delinquency only public prosecutors but also specialist
studies drew our attention, because Sheldon officers in behavioral sciences working at the
Glueck and Eleanor Glueck published their Correction Bureau and the Rehabilitation
social prediction scale for delinquency prone- Bureau became researchers at the institute.
ness in 1950. Some Japanese scholars also These researchers carried out the field research
tried to evaluate their scale. For the fi rst time at prisons, juvenile training schools, and so on.
in 1954 Tokuhiro Tatezawa began to use this They began to publish a White Paper on Crime
scale in order to predict juvenile’s delinquency in 1960. They contributed to the development of
proneness. The researches by the use of this the field research from the sociological
scale contributed to the development of statis- criminology.
226 M. Yokoyama
members of JASC for a decade, and that scholars ceeded in understanding the fundamental knowl-
in law presented paper more actively than in the edge of sociological criminology. Then, they
earlier period. became active members of JASC. On the other
hand, many sociologists were not interested in
discussing issues on criminal policy which schol-
15.9 Change in the Theoretical ars in criminal law wanted to research together
Focus with scholars and practitioners in behavioral
sciences.
Around 1975 the anomie theory advocated by In such a situation Kaoru Ohash, one of the
Robert Merton was popular among young schol- influential leaders of JASC, decided to found a
ars. In the Vol. 1 of JJSC there were two articles, new association to promote the study and research
in which the analysis from the framework of the from the viewpoint of social pathology and social
anomie theory was used. disorganization. Under his initiative the Japanese
In the United States criminologists were inter- Association of Social Problems was established
ested in the labeling theory advocated in 1960s. in 1985. Many sociologists of JASC moved to
Then Japanese scholars began to read articles on JASP, although leading ones in sociological crim-
the labeling theory written by criminologists. inology remained in JASC. Since then JASP has
Several members of JASC including Yoji Morita not contributed greatly to the development of
(1977) and Minoru Yokoyama (1978, 1980) sub- criminology, as members of this association dis-
mitted a manuscript to JJSC. cuss the phenomenon of crimes only as a part of
Naoyuki Murakami translated “Outsiders” social problems.
written by Howard S. Becker in 1963 into
Japanese language, and published it in 1978.
Through this translation, Japanese learned the 15.11 Establishment of Japanese
critical viewpoint in the sociology of deviance, Association of Victimology in
which attracted the attention of youngsters, espe- 1990
cially those involving in the movement for radi-
cal social change. However, the labeling Hans von Hentig published a book entitled “The
perspective, especially that from the critical view- Criminal and his Victim” in 1947. In 1956
point was not accepted widely in Japan. Benjamin Mendelsohn compiled the research
Following the wane of the students’ move- papers on the relation between offenders and vic-
ment around 1979 the critical viewpoint advo- tims, and systemized them as one research area,
cated in the labeling theory was no longer which he called victimology. He sent his paper
supported. In its place, since 1980s the frame- on victimology to leading criminologists all over
work of the social constructivism and social bond the world, two of whom were Shufu Yoshimasu
theory advocated by Travis Hirschi in 1969 and Tanemoto Furuhata. On the advice from
became popular. Shufu Yoshimasu, Osamu Nakata read the article
written by Benjamin Mendelsohn, and published
his article on victimology in 1958. In 1959 he
15.10 Establishment of Japanese held a symposium on victimology at his Tokyo
Association of Social Problems Medical and Dental University with the support
in 1985 of Shufu Yoshimasu and Tenamoto Furuhata.
Then, the term victimology became popular.
Scholars in criminal law who participated in the Such scholars in criminal law as Koichi
activities of JASC were inactive at the time of Miyazawa and Minoru Oya were also interested
foundation of this association. They attended the in victimology. Koichi Miyazawa published an
annual meeting as a receiver of information on article on victimology in 1963 for the first time as
sociological criminology. However, they suc- a scholar in criminal law. At the beginning he was
228 M. Yokoyama
criticized by scholars in criminal law, because he foreign university, it is very difficult for them to
was regarded as an advocate for criminalization find a full-time job as a criminologist in Japan.
in response to the demand of crime victims.7 It At the large-sized university, a professor like
was not until 1990 that Japanese Association of me teaches both criminology and criminal policy
Victimology was founded by his initiative. The at the faculty of law. Recently, members of the
inauguration meeting of the association was held faulty of law are also curtailed owing to financial
at his Keio University in 1990. difficulties in a university. Therefore, the univer-
Since the late 1990s the crime victims’ move- sity refrains from employing a full-time profes-
ment surged up. In response to the movement sor to teach criminology.
members of JAV discussed the measures ear- I am afraid that able young criminologists,
nestly best to guarantee victims’ rights. They especially those researching from the viewpoint
contributed to establishing and reforming the may decrease in the near future.
legal system for the guarantee of victims’ rights.
On the other hand, they are less interested in
research on the relation between offenders and 15.13 Researches at Two National
victims. Research Institutes
8
The National Police Agency has published the White
7
During the World War II many political criminals were Paper on Police since 1978. However, researchers of
tortured and treated inhumanly within the criminal justice. NRIPS are not responsible for this publication, although
To prevent such inhuman abuse of criminal punishment, results of their research are sometimes cited in the white
scholars in criminal law opposed criminalization. paper.
15 Development of Criminology in Japan from a Sociological Perspective 229
Able correction officers and probation and Ryukoku University, a private university sup-
parole officers who have mastered such social sci- ported by temples for Jodoshinshu, a school of
ences as sociology and psychology are assigned to Buddhism, established the Corrections and
a position as a researcher at the Total Institute for Rehabilitation Research Center in 2001.11 By receiv-
Legal Affairs in the Ministry of Justice. Previously, ing funds from the national government and foun-
they conducted much good field researches espe- dations, such professors as Sinichi Ishizuka and
cially in a prison, a juvenile training school, and a Koichi Hamai have conducted good research. They
probation and parole office. By the use of the tend to analyze data from a critical viewpoint. For
framework of criminology they analyzed results of example, Shinich Ishizuka researches on the death
their researches. Their analysis also has contrib- penalty, and criticizes the Japanese Government
uted to the development of criminology.9 policy on the maintenance of the death penalty.
In the Ministry of Justice public prosecutors In 2003 Tokiwa International Victimology
have monopolized all important positions, one of Institute was founded at Tokiwa University by
which is a position of the director of TILAMJ. As the initiative of Hidemichi Morosawa.12 At the
elite public prosecutors in the Ministry of Justice do institute they conduct international interdisciplin-
not regard researchers as true professional crimi- ary research and teaching in victimology. The
nologists, they lose freedom to research. They are activities at the institute have contributed to the
obliged to conduct policy-relevant research to con- progress of victimology and the improvement of
tribute to policy effectiveness. Their most important practice for crime victims.
job is the publication of the White Paper on Crime,
a book for public consumption, in order to let peo-
ple understand the criminal policy of the Ministry 15.15 Insufficient Funds and Chances
of Justice. In addition, they have gradually lost the for the Field Research
freedom to present papers at the meetings in aca-
demic circles such as the annual meeting of Japanese In Japan important science research funds are
Association of Sociological Criminology.10 offered by the Ministry of Education, Culture,
Sports, Science and Technology. The largest
amount of such monies is assigned to the natural
15.14 Research Institutes at sciences as opposed to the social sciences like
University Level criminology. In such a situation criminologists do
not have sufficient funding to carry out adequate
In Japan there are only a few research institutes field research.
on criminology and victimology. The main insti- Recently, younger sociologists give up con-
tutes are as given below. ducting field research. Most of them carry out a
case study by the use of a framework of social
constructivism. Their achievement does not really
9
Researchers at TILAMJ started to publish the White
contribute to the development of criminology,
Paper on Crime in 1960. At the early period they analyzed
data on crimes and criminals as criminologists indepen- because their interpretation is arbitrary and they
dent from the policy by the Ministry of Justice.
10
Officers affiliating with national government and the court
are usually obliged to get permission to present their paper
at the academic circle in advance. Their paper is sometimes 11
The founder of Jodoshinshu was Shinran (1173–1262),
censored by their boss. At the place of interpretation about
who preached that even criminals are rescued by the mercy
data, they have to express that the interpretation is not official
of Buddha. Then, many priests in Jodoshinshu have worked
but private one. Especially, the judges at the court who
for rehabilitation of criminals especially as a chaplains.
respect the crime control model impose the strictest pressure 12
on the family court probation officers not to express their Hidemichi Morosawa, a chairman of directors’ board of
own opinion freely. Under such pressure many probation Tokiwa University, studied victimology under the guid-
officers give up to work as a professional case worker for ance of Koichi Miyazawa at the graduate school of Keio
juvenile’s best interests under the welfare model. University.
230 M. Yokoyama
13
Minoru Yokoyama (2007) analyzed criminalization in
the relation to change in public opinion.
Crime and Criminal Justice
in Malaysia 16
Salim Ali Farrar
courts1 (Magistrates, Sessions or High Court, and frequenting discotheques or for drinking alco-
depending on the seriousness of the offence) in hol.6 It has also become a matter of concern for
each state. opposition political parties, especially those domi-
While the majority of crimes (murder, serious nated by non-Muslims, who fear “creeping” expan-
personal injury, sexual offences, etc.) are regulated sion of Shariah.7
under federal law, there are specific Islamic crimes Apart from in matters relating to Islamic Law,8
(“offences against the precepts of Islam”) punished policing in Malaysia is centralised. A Chief Police
under state law though subject to a federal law Officer is designated for every state and each is
cap.2 So under the Shariah Courts (Criminal subject to the central authority of the Inspector
Jurisdiction) Act 1965,3 federal law prevents state General of Police (IGP), appointed by the King
legislatures from passing hudud laws,4 and limits (Yang di-Pertuan Agong), who in turn reports to
sentences up to a maximum of 3 years imprison- the Minister,9 namely, the Attorney General or the
ment, RM 5,000 fine, whipping of six strokes of the Prime Minister of the day. Although formally
rotan or any combination of all three. This aspect of independent of the federal government, the PDRM
the Malaysian criminal justice system is becoming is not subject to local authority police committee
more significant as state religious authorities (such oversight as in the UK (Mawby and Wright 2005,
as JAIS5) seek increasingly to enforce Islamic mor- 4), and disciplines itself. 10 Indeed, demands for
als and ethics on local Muslims, whether for violat- reform in criminal justice, as we shall see, have
ing state rules on unlawful proximity (“khalwat”) tended to focus on the role of the police and to
criticise its apparent function as the “executive
right arm” of the central government.11
1
Police officers of at least the rank of Inspector are allowed
6
to prosecute (Criminal Procedure Code, section 377(b) The notorious case of Kartika Sari Dewi Shukarno in 2009
(2)). In Sabah and Sarawak, especially in the more remote was one of a number of cases in which state Islamic author-
areas, it is not unknown for senior police officers to con- ities have sought to make an example of those transgressing
duct prosecutions for less serious offences. In addition to Islamic norms. See Wall Street Journal, 23 August 2009,
the police, prosecutors can also be from other enforce- http://online.wsj.com/article/SB125097405997351597.
ment agencies such as Customs and Excise, the Securities html (viewed on 28 September 2011).
7
Commission, the Central Bank and the Anti-Corruption The extent to which the Federal Government should allow
Agency; see Ariffin, Azmi (2001). the opposition state governments to implement the so-
2
Customary law has no practical operation in Peninsular called hudud laws is also an ongoing debate; see Today, 25
Malaysia or East Malaysia (Sabah and Sarawak), other September 2011, http://www.todayonline.com/Hotnews/
than in matrimonial disputes, administration of estates, EDC110925-0000240/PM-pledges-no-Islamic-law-in-
property and land rights; see Hamzah and Bulan (2003). Malaysia, viewed on 28 September 2011.
8
The Ninth Schedule, List II, to the Federal Constitution, in Whether the Police should assist the religious authorities
addition to matters touching on ritual worship, Islamic to enforce Islamic law at all because religion is fundamen-
trusts and family laws, provides that States have powers to tally a “state” as opposed to a “federal” matter, remains a
enact legislation for the “creation and punishment of problem for the Police (I am grateful to Dr. Khairil Azmin
offences by persons professing the religion of Islam Mokhtar for this point). Given that the religious authori-
against precepts of that religion, except in regards to mat- ties should be better trained in “religious” matters, one
ters included in the Federal List”. List II adds that the might have thought that enforcement should only be the
Shariah Courts only have jurisdiction over Muslims and job of religious officers.
are subject to federal law. 9
Police Act 1967, section 4.
3
Act 355 (section 2). Section 2 was last amended in 1984 10
See Police Act 1967, Part XII. However, this now needs to be
by the Muslim Courts (Criminal Jurisdiction) (Amendment) qualified in light of the coming into force of the Enforcement
Act 1984, Act A612. Agency Integrity Commission. See further, below.
4
This refers to punishments that have been specified in 11
Former Prime Minister of Malaysia, Tun Mahathir
either the Qur’an or Sunnah and which mandate flogging, Mohamed, has vigorously asserted in his recent autobiogra-
amputation, stoning or death depending on the particular phy, that the Police are independent and on the occasion of
offence and whether the evidential threshold (which is Operation Lalang in 1987, it was he who had to follow their
high) has been reached. See further Basiouni (1982). advice; see Mahathir Mohamed (2011, 551–558). Also like
5
Jabatan Agama Islam Selangor, or the Department of the Armed Forces, they are technically independent by their
Religion of Islam for Selangor. being placed under the authority of the Malaysian King.
16 Crime and Criminal Justice in Malaysia 233
The proximity of the central government to more detailed information. The figures provided
the police is underscored by the fact that ulti- do not represent a complete breakdown of all of
mately all prosecutions, with the exception of the different types of crimes committed in
prosecutions in the Shariah Court, are carried out Malaysia, nor of the total amount of crime com-
under the auspices of the Attorney General, who mitted, but only what is mentioned in the “Crime
is appointed by the King, upon the advice of the Index”. This refers to a limited list of crimes
Prime Minister. Technically, he is a public ser- compiled largely for the purposes of international
vant, holding office during the pleasure of the comparison. Inspector General Standing Orders
King (Federal Constitution, Article 145(5)). But define the “Crime Index” as those crimes
he is also “part and parcel of the government of “reported with sufficient regularity and with
the day” (Bari 2008, 118). Unlike in Australia, sufficient significance to be meaningful as an
England and Wales, Ireland and South Africa, the index to the crime situation”.14
powers of prosecution are not delegated to an The most obvious limitation, common to all
independent Director of Public Prosecutions but countries, is that only “reported” crime is included
remain vested in the person of the Attorney within this official index. The actual extent of
General.12 While this ensures that politically sen- crime is unknown (and frequently higher) because
sitive cases are handled in accordance with the not all crime is reported to the police or other law
government’s view of the “public interest”, it also enforcement agencies, and of those crimes reported
casts political shadows over certain police opera- not all are recorded because of police discretion
tions, investigations and decisions to prosecute. It (Moshe et al. 2011, 45–47). But the “dark figures”,
is also true to say, however, that certain prosecu- as they are known, are not illuminated in Malaysia
tion agencies, such as the Malaysian Anti- by additional surveys. There is no Malaysian
Corruption Commission, retain a high degree of equivalent of the government-sponsored British
independence notwithstanding the buck ulti- Crime Survey (BCS) which, for the first time in
mately resting with the Attorney General.13 1982, gathered data nationwide on the incidence
of unrecorded crime, and which has been repli-
cated at regular intervals ever since (Maguire 1997,
16.3 Crime Data 162–163). Nor are the figures supplemented by
local neighbourhood victim surveys, such as the
The PDRM gathers the official crime data but Islington Crime Survey (1986), which have been
does not publish these figures as a matter of influential in the UK and thrown light on the
course. Nor is there any Freedom of Information uneven distribution of victimisation in local com-
Act that guarantees a right of access to such munities, and revealed data normally left untouched
information. Release of information is subject to by the national surveys (Maguire, ibid, 170–171).
the discretion of Bukit Aman, the Headquarters There is even a relative absence of smaller surveys
of the PDRM, and of the Inspector General of conducted by academics. Criminology is not a
Police in particular. This does not mean that all widely studied discipline in Malaysia and does not
matters pertaining to the crime rate in Malaysia attract the funding it receives in many western
are state secrets. Information is released by the countries. The studies that exist are very limited in
PDRM periodically through its Public Relations nature and normally conducted as part of a diploma
Department and made available on the PDRM course in Police Science at the National University
Web site. Individual researchers (including this of Malaysia (UKM).
author) are also occasionally given access to The only national survey on public percep-
tions and experiences of crime in Malaysia was
12
Criminal Procedure Code, section 376(1).
14
13
I am grateful to Dr. Khairil Azmin Mokhtar for this Inspector General of Police Standing Order, para
point. D203.
234 S.A. Farrar
an isolated study conducted by the Royal try like Malaysia. Yet if an elaborate Royal
Commission as part of its enquiries into the prac- Commission can be set up to look into the affairs
tices of the PDRM (Royal Commission 2005). of the police as a whole (and of which the public
They carried out a survey of public opinion surveys formed only a very small part), there is
between 22 November 2004 and 1 December no reason why a properly structured and indepen-
2004 (Royal Commission 2005, 60) comprising a dent Crime Survey could not be established if the
sample of 575 adult respondents from urban areas public policy arguments were convincing.
in all 13 states of Malaysia and the Federal The second limitation of the Malaysian Crime
Territories, and approximating the ethnic break- Index is that it represents only a small selection
down of the population (43.9% Malay; 32.7% of reported and recorded crime. Not only are reli-
Chinese; 13.9% Indian). A total of 101 out of the gious crimes, such as “khalwat” (unlawful prox-
575 respondents, or 17.6%, reported being vic- imity) and “minum arak” (drinking alcohol),
tims of crime. Of those 101 victims, only 76 per- excluded (though their extent and prosecution are
sons, or 75.3%, reported the incident to the police. fast becoming issues in contemporary Malaysia)
The main reasons for not wanting to make a because they are handled by different enforce-
report included the trouble in making police ment agencies, but even the majority of the crimes
reports and the feeling that the police would not under the Penal Code are not included. In research
do anything if they did (Royal Commission carried out by Sidhu (2005, 8), out of a total num-
2005, 60). ber of 1,797,105 criminal cases reported to the
Whether this survey gave a more accurate or PDRM, only 156,455 of the cases investigated
valid picture of the true crime situation is doubt- (8.7%) were of crimes caught by the Crime Index.
ful. First, it took place within just over a week Kidnapping, criminal breach of trust, drug
and in the context of a highly controversial Royal offences, molestation and outraging modesty, for
Commission investigating the affairs of the Police example, are all excluded from the list.
in general, in the immediate aftermath of a gen- While the Malaysian Crime Index has its
eral election and the freeing from custody of de shortcomings in showing the total extent of crime,
facto opposition leader, Anwar Ibrahim. Second, it nevertheless provides useful data and indicates
its surveying sample was relatively small, espe- trends for some of the most prevalent offences in
cially in comparison with the national surveys Malaysia. The Index is sub-divided into “Violent
conducted in the UK, and thus arguably unrepre- Crime” and “Property Crime”. “Violent Crime”
sentative. Third, although roughly approximate, incorporates murder, attempted murder, gang
the ethnic profiles of those interviewed under- robbery with firearms, gang robbery without
represented Malays and over-represented both firearms, robbery with firearms, robbery without
Chinese and Indians in the population (especially firearms, rape and voluntarily causing hurt.
the latter which is less than 8%). Given the PDRM “Property Crime” comprises housebreaking and
is predominantly Malay and the existence of eth- theft by day, housebreaking and theft by night,
nic chauvinism within local communities, this theft of lorries and vans, theft of motor cars, theft
had the potential to distort and exaggerate the of motorcycles and scooters, theft of bicycles and
findings. “other forms of theft”. Since 2006, the Crime
The national survey conducted by the Royal Index has also grouped the offences of aggravated
Commission has not been repeated, nor have theft, gang robbery without firearms and robbery
there been any other surveys to supplement the under the category of “street crime” because of
recorded crime figures. The principal reasons concern expressed by members of the public in
given for the absence of surveying in Malaysia relation to these particular crimes.
have been the cost and empirical validity of the The total figures for these offences between
results (Sidhu 2005, 5). It is certainly true that 2000 and 2010 are provided below. For ease of
national surveys are very expensive operations, comparison and because of changes in methods
and arguably impractical for a developing coun- of official presentation in the crime statistics,
16 Crime and Criminal Justice in Malaysia 235
attempted murder has been removed, and the dif- Offenc 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Although “robbery and violent theft” are techni- Murder 551 608 516 565 565 497 606 590 654 571 487
cally “property crimes”, the Crime Index categor-
Rape 1210 1354 1418 1471 1718 1887 2454 3176 3494 3742 3382
ises them as offences of violence. The various
types of housebreaking have also been merged Serious 5104 4699 4440 4368 4196 4246 5843 6793 6648 8302 7685
ing”, as have the different types of theft into 1469 1366 1440 1630 1528 1540 2250 2460 2702 2940 2133
that although there has been an overall increase Totals 2156 20,3 20,7 22,7 21,7 22,0 31,4 35,1 37,8 42,0 32,8
in crime across the different categories, and big of 1 22 79 13 67 39 08 59 17 15 87
spikes between 2006 and 2009, by the end of Violent
at 13.76 M in 1980 and had risen to 28.23 M by Aggrav 1508 1436 1446 1579 1153 9617 1107 1110 8205 9665 5849
violent crime still grew by 57.4% and property Other 3979 3321 2804 2763 3308 3431 3140 3354 3301 3039 2815
crime by 15.4% (Sidhu 2005, 11). An increase thefts 9 0 3 8 0 7 8 0 0 3 0
The fact that this increase in the crime rate Crime 166, 156, 148, 156, 156, 157, 185, 198, 203, 200, 171,
took place at the same time as Malaysia’s push Index 234 461 798 238 363 365 716 476 440 152 671
for industrialisation and modernisation (Jomo Totals
and Tan 2008, 30) does not substantiate the view
Street 28,9 27,3 28,3 31,6 26,4 24,6 33,2 35,4 34,9 38,0 24,8
that economic development has coincided with Crime 67 98 67 81 46 69 64 34 68 30 37
an increase in criminality. There is no necessary Totals
correlation between economic development and
increases in crime, but between economic
Fig. 16.1 Criminal cases statistics 2000–2010
236 S.A. Farrar
would have increased pressure on prosecuting of the Islamic Conference (OIC), Malaysia incarcer-
staff. Resources may have been spread too thinly ates less than Iran (291), Morocco (189) and
and impacted deleteriously on prosecuting Saudi Arabia (178), but considerably more than
efforts.18 The increase in the workload on state Indonesia, Pakistan, Egypt (81), Sudan (45) and
prosecutors might also have exacerbated the the poorer sub-Saharan countries (Ibid). Also as a
problem of delay in criminal courts. The extent of Common Law country which, in most cases,
the problem can be gleaned from the figures of gives judges discretion over sentence, its incar-
the number of cases pending (see Figs. 16.3–16.5 ceration rates more closely mirror Australia
below). (133), England and Wales (155) and New Zealand
With a total of 11,624 trial cases pending, (199) than India (31), Pakistan (40) and
together with 6,324 appellate cases (as of 2009), Bangladesh (42) (Ibid).
the courts appear jammed with case traffic. The current figures for Malaysia represent a
According to Malaysian judges themselves, the considerable reduction in its prison population
delay has much to do with the habits and profes- from previous years which has had demonstrated
sional shortcomings of criminal defence lawyers, a seemingly inexorable climb. Between 1992 and
with too many requests for adjournment adding 2007, its prison population had grown from
to delay (Makinudin 2010, iii). However, it may 21,612 (112) to 50,305 (189), more than dou-
also have been down to systemic failures and the bling, and prisons were overcrowded, the official
lack of a case management system (Ibid, i). prison capacity being 32,000. While part of the
growth could be attributed to a rise in overall
population growth (from 18.762 m in 1992 to
16.5 Prison Population 27.186 m in 2007), the increase could also have
indicated a preference for incarceration as a
As of mid-2010, Malaysia had a prison popula- deterrent response to the increase in the official
tion of 38,387, ranking 43rd in the world for the crime rates (see above), though, then as now,
total number of offenders it incarcerates there has been no empirical or qualitative study
(Walmsley 2011). Given a population of 27.91 on the specific approaches of the judges in
million, this equates to an imprisonment rate of Malaysian courts and whether there exist any
138 per 100,000. As a member of the Organisation trends.
In retrospect, one factor on the level of incar-
ceration may have been a result of lack of sen-
18
In August 2010, the Malaysian Bar Council reported tencing options available to the judges. The
that there were 508 state prosecutors across the country
framework within which they have operated, until
(see Bar Council of Malaysia (2010). If the figures were
comparable in 2009, this would have equated to an aver- recently (see below), had changed little since
age of 27 cases per prosecutor over the year. Independence, offering options of imprisonment,
238 S.A. Farrar
completion
2006 2007 2008 2007 2008 2009 2007 2008 2009 2009
Perlis 8 9 16 1 12 10 - 5 6 20
Selangor 529 654 733 205 205 922 80 126 404 1,251
Negeri Sembilan 30 36 38 14 11 16 8 9 15 39
Malacca 14 12 25 9 23 37 11 10 24 38
Pahang 70 85 97 21 17 30 6 5 21 106
Terengganu 6 7 10 4 5 31 3 2 17 24
Kelantan 13 25 46 15 24 56 3 3 4 98
Sabah 26 41 54 24 24 55 9 11 17 92
Sarawak 44 56 80 30 47 71 18 23 28 123
Total 1,694 1,877 2,142 524 632 2,257 341 367 1,008 3,391
whipping, fines, compensation orders, police orders, restorative justice schemes or any other
supervision, good behaviour bonds and special innovative sentencing options that had been tried
orders for juveniles (Majid 1999, 493–494).19 out in other common law countries (Sithambaran
There were no community service or punishment 2005, 4–5).
19
In addition to these sentences, Malaysia also has a manda- against the person of the Yang di Pertuan Agong (Penal Code,
tory death penalty for murder (Penal Code, s 302), drug s 121A) and offences relating to firearms, ammunitions and
trafficking (Dangerous Drugs Act 1952, s 39B(1)), discharg- explosives (Internal Security Act 1957, s 57(1)). There is also
ing a firearm in the commission of a scheduled offence a discretionary death sentence available for kidnapping
(Firearms (Increased Penalties) Act 1971, s 3), offences (Kidnapping Act 1961, s 3) and a few other offences.
16 Crime and Criminal Justice in Malaysia 239
completion
2006 2007 2008 2007 2008 2009 2007 2008 2009 2009
Perlis 8 19 42 20 23 29 9 0 13 58
Penang 452 537 779 206 303 1,586 121 61 1,480 885
Kuala Lumpur 612 646 662 152 97 466 118 81 332 796
Total 2,712 3,021 3,929 1,189 2,086 7,320 880 1,085 5,706 5,543
completion
2006 2007 2008 2007 2008 2009 2007 2008 2009 2009
Perlis 0 2 2 3 0 2 1 0 0 4
Kedah 13 17 20 5 5 10 1 2 2 28
Perak 20 15 15 9 1 28 14 1 11 32
Negeri Sembilan 3 7 7 5 0 2 1 0 1 8
Malacca 1 6 5 6 1 23 1 2 19 9
Sarawak 16 27 14 36 60 39 25 73 11 42
Total 216 254 479 129 768 9,506 91 543 7,295 2,690
judicial review and a non-interventionist approach has the potential to further reduce prison num-
by the courts.24 The Act had originally been bers substantially in addition to serving rehabili-
passed to deal with the Communist insurgency, tative ends.30
but became a useful weapon in counter-terrorism
as well as a deeply unpopular method of manag-
ing ethnic conflicts and political opposition in 16.6.3 Criminal Procedure and
Malaysia. In June 2012, the Internal Security Act Evidence Law
1960 was repealed and replaced by the Security
Offences (Special Measures) Act 2012 which The Criminal Procedure (Amendment) Act 2006
provides for judicial oversight and neither allows was the government’s response to mounting
indefinite detention without trial nor detention internal and external political pressures for the
incommunicado ( see sections 4 and 5). introduction of new mechanisms of police gover-
nance and legal accountability. This legislation
represented the most radical reform of Malaysian
16.6.2 Sentencing criminal justice and procedure for more than 30
years (Farrar 2009). In respect of pre-trial proce-
In 2006, following an outcry over the extent of dure, it included reform of the law of body
prison overcrowding, amendments were made to searches, confirmed specific rights of suspects
the Criminal Procedure Code allowing offenders upon arrest (in particular the right to a lawyer and
to perform up to 240 hours of community service to be so informed), abolished the infamous “cau-
in place of imprisonment.25 Though it seems that tion statement” under section 113 of the Criminal
the measures took a while to be put into place, by Procedure Code, further regulated the discretion
2010 pressures on numbers were reduced through of magistrates to detain suspects following an
administrative changes allowing 17,000 offend- arrest, amended rules on pre-trial disclosure and
ers serving existing prison sentences for minor enhanced prosecutorial oversight of police
crimes to serve the rest of their sentence as com- investigations.31
munity service.26 In addition, since 2008,27 a sys- In June 2010, the Government also passed leg-
tem of parole modelled along the lines of the islation allowing state prosecutors to offer plea
Australian system has been introduced which, bargains, offering accused persons up to a fifty
though initially affecting only a very limited per cent discount on the maximum sentence
range28 and number of prisoners,29 nevertheless available for that offence in exchange for a guilty
30
24 The system has strict vetting procedures overseen by a
See Abdul Razak bin Baharudin & Ors v Ketua Polis
Parole Board and requires all potentially eligible appli-
Negara & Ors & Another Appeal 1 MLJ 320 [2006];
cants to have successfully completed an “in-house” reha-
Sejahratul Dursina@Chomel bte Abdullah v Kerajaan
bilitation programme; see Prison (Amendment) Act,
Malaysia & Ors 1 MLJ 405 [2006].
2008s 46E.
25
Criminal Procedure Code (Amendment) Act 2006, s 27. 31
The Public Prosecutor can now demand police reports at
26
See The Star, “Foreign Prisoners to Join Parole any stage of an investigation (s 120 of the CPC). See also
Programme”, 28 April 2010. sections 107 and 107A that oblige police officer to submit
27
See The Prison (Amendment) Act 2008, Act A1332, reports to the Public Prosecutor within specified time peri-
Part 1Va. ods following requests by the person who first lodged the
28
Parole is not available for a number of sex offences, police report. This is following reforms from other juris-
housebreaking causing death or grievous hurt, as well as dictions. In England and Wales, for example, since the
those who plant or cultivate dangerous drugs; see Prison publication of the Glidewell Report in 1998 and then the
(Amendment) Act 2008, Fourth Schedule. Auld Report in 2001, the Crown Prosecution Service has
29
In 2011, there were only 310 parolees; see Gunaratnam been cooperating more closely with the Police, especially
and Palansamy (2011). in the charging process; see Jehle and Wade 2006, 177.
16 Crime and Criminal Justice in Malaysia 243
plea.32 Given the current workload of deputy pub- the court to allow a child to give testimony out-
lic prosecutors and the number of cases pending side the court in a special room,37 to set up a
before the courts, this amendment was an essen- screen inside the court shielding him or her from
tial move in order to avoid further adding to delay the accused,38 to give pre-recorded video testi-
in the court system.33 Early in 2011, the Attorney mony39 and to testify via a live TV-link40 and for
General issued guidelines and conducted road questions to be put to a child through a court-
shows throughout the country on how the system appointed intermediary.41 It also mandates restric-
should operate. It is still in early days, however, tions on publication of the child witness personal
and much will depend on the extent to which the details to the press and other media42 and permits
rights of accused persons to a lawyer during the court to minimise formality of proceedings
investigation are implemented in practice and by ordering court officers to “de-robe”.43
how closely judges are involved in and regulate The Witness Protection Act 200944 further
the “negotiation”.34 Malaysian lawyers and police facilitates giving testimony by introducing for the
will need to draw from experiences overseas to first time a witness protection programme in
ensure that due process requirements are observed Malaysia.45 This legislation was passed because
and that suspects are not coerced into pleading of the perceived problem of prosecutions collaps-
guilty to offences they never in fact committed.35 ing due to extra-curial intimidation of prosecu-
In relation to trial procedure, video testimony tion witness in gang crime and related offences.
and live television links are now permitted where Subject to the discretion of the Director General,
“in the interests of justice”.36 This measure was the Act allows for change of identity and reloca-
introduced to protect vulnerable witnesses (again tion of witnesses and their families. The Director
following trends in common law countries, but General may recommend particular witnesses for
especially earlier reforms in England and Wales) the programme and consider applications from
and to encourage children and victims of sex witnesses based on the seriousness of the offence,
offences to give testimony in an adversarial trial importance of their evidence, availability of alternative
setting. In the case of children, these measures methods for securing the witness testimony and
have been enhanced by the Evidence of Child any other factors the Director General thinks
Witness Act 2007. This confers a discretion on relevant.46
32
See “The Malaysian Insider”, 15 January 2011, online
available at http://www.themalaysianinsider.com/malaysia/ 37
Section 3.
article/a-g-plea-bargaining-to-be-implemented-in-three- 38
Section 4.
months/html, accessed 15 October 2011. See also 39
Section 6.
Anbalagan (2011).
40
33 Section 5. While the judge is specifically empowered to
See “Appellate Court give nod for judges in plea bar-
issue such directions, he or she is contingent upon the
gaining”, Bernama 30 September 2011, accessed from
availability of the technology within particular courts. Not
h t t p : / / w w w. t h e e d g e m a l a y s i a . c o m / i n d e x .
all courts in Malaysia, especially outside Selangor and the
php?option=com_content&task=view&id=193803&Item
Federal Territories, have been modernised, so judges’
id=27, and viewed on 15 October 2011.
34
hands may be tied in practice. See further Mustaffa and
The Malaysian courts have now overturned previous Salleh (2010, viii).
case authority that prohibited a judge from indicating in a 41
Section 8.
pre-trial conference the sentence he or she would be
42
minded to give in relation to this particular accused and on Section 14.
43
the facts of the case. However, the court retains a discre- Section 10.
tion to refuse any potential “deal” forged between prose- 44
Act 696.
cution and defence counsel; ibid. 45
The Act allows relocation within peninsular Malaysia
35
For the experience in England and Wales, see further only, specifically excluding relocation in either Sabah or
Baldwin and McConville (1977), Negotiated Justice, Sarawak; section 13(3).
London, Martin Robertson. 46
Section 9. For further discussion on the Witness
36
Criminal Procedure Code, section 272B. Protection Act 2009, see Kaur (2011).
244 S.A. Farrar
16.6.4 Criminal Justice Administration the EAIC will further depend on how well it is
funded. The recent controversial policing of the
Potentially, the most important reform in the demonstrations surrounding the campaign for
administration of criminal justice has been the clean and fair elections (“Bersih 2.0”) might be
establishment of a new body, the Enforcement just the fillip the EAIC needed to push its funding
Agency Integrity Commission,47 to oversee the needs higher up the political agenda. However,
activities of the PDRM, along with twenty-one resourcing a “mega commission” cutting across
other federal enforcement agencies. Since the 21 different agencies is a huge undertaking, espe-
release of former Deputy Prime Minister Anwar cially in the contexts of the already considerable
Ibrahim in 2005 and the concerns of a “culture of spending commitments in the 10th Malaysia Plan
impunity” and police “untouchability” expressed and the uncertain state of the global economy.
by the Royal Commission in its 2005 Report, try- Supplementing and complementing the work
ing to find appropriate and acceptable legal of the EAIC is the re-vamped Malaysian Anti-
mechanisms for police accountability has been a Corruption Commission (the MACC) which, as
key political priority. The Royal Commission the name suggests, focuses on investigating and
recommended setting up an Independent Police policing “corruption” rather than “misconduct”.
Complaints and Misconduct Commission that The new Act was also passed in 2009 and, in con-
would focus solely on overseeing the activities of trast with the EAIC, cannot be accused of having
the PDRM. The original idea was to establish a established a toothless tiger, though concerns
completely independent commission that would were initially expressed over its lack of indepen-
investigate, prosecute and punish police officers dence. Rather, the concern with the MACC is that
for “misconduct”. However, after successful it has too much power and that its investigations
political lobbying by the PDRM, which com- have insufficient due process protections, espe-
plained of unfair victimisation, the recommenda- cially when examined in the light of the death of
tions were watered down and replaced with an Teoh Beng Hock (who died while in MACC cus-
inter-agency “Ombudsman” (the EAIC), respon- tody in 2010.) “Witnesses”, that is persons who
sible for 21 enforcement agencies. This body are questioned by MACC officers but not placed
receives complaints, conducts investigations, under formal arrest (though who may be in “cus-
makes referrals and has the power to “go public” tody”), have no rights to a lawyer (the CPC does
if its recommendations are ignored by the rele- not apply) and, as a result of a ruling of the
vant disciplinary body. It does not have any pow- Federal Court in 2010, can be questioned out of
ers to prosecute or impose punishments. “office hours” in order to facilitate and expedite
While such a commission can play a useful the obtaining of relevant evidence.48 Further, the
function in using public opinion to effect agency right of silence will not apply and all statements
compliance, one wonders whether it will be per- made to MACC officers will be admissible unless
ceived as legitimate in ordinary Malaysian eyes obtained by duress (section 53, MACC Act 2009).
when the EAIC still comes under the purview of Given that there is no right to a lawyer, the lack of
the Attorney General, a government minister. It is oversight and the opportunity to interrogate well
also doubtful whether the indirect sanctions will past the twilight hours, one would be forgiven for
be strong enough to deter police or other enforce-
ment agency misconduct when the EAIC relies
on the disciplinary authorities of the enforcement 48
See Tan Boon Wah v Datuk Seri Ahmad Said Hamdan & Ors
agency itself and the determination of its officers (2010) (Federal Court) cited in The Star, 21 May 2010. This
to take appropriate action. The effectiveness of decision upheld the Court of Appeal’s literal interpretation of
section 30(1)(a) of the MACC Act 2009 that “day-to-day”
questioning did not prohibit questioning out of office hours
and was not subject to rule 20 of the Lock-up Rules 1953. See
47
Enforcement Agency Integrity Commission Act 2009. further Tan Boon Wah v Datuk Seri Ahmad Said Hamdan &
The Act came into force in April 2011. Ors [2010] 4 AMR 312 (CA), [2010] 6 CLJ 142.
16 Crime and Criminal Justice in Malaysia 245
thinking due process has been sacrificed for crime the right project to kick-start such a development
control. (as it was in the UK), but the universities also
require more staff with the expertise and resources
to make the necessary contribution.
16.7 Conclusion
The author is highly grateful and indebted to the Assistant Pakistan is a developing country, situated in South
Editor of Pakistan Journal of Criminology, Mr. Imran Asia and her border touches with India,
Ahmad Sajid, a Ph.D. Research Scholar for collecting Afghanistan, Iran, China and the Arabian Sea.
data from offices of the criminal justice units and locating
Pakistan came into being on August 14, 1947. It
some valuable references of criminology in Pakistan.
has four provinces; Balochistan, Khyber
Fasihuddin, Master (*)
Pakhtunkhwa, the Punjab and Sindh, and seven
Pakistan Society of Criminology and the Editor-in-Chief,
Pakistan Journal of Criminology, Pakistan agencies of the Federally Administered Tribal
e-mail: [email protected] Area (FATA) which is a buffer zone between
Pakistan and Afghanistan. With a population of at each provincial headquarters collects crime
177.1 million and a growth rate of 2.05% Pakistan statistics from all the DPO offices in the prov-
has the 6th largest population in the world ince. The national crime recording institution is
(Population Reference Bureau 2010) and is the the National Police Bureau (NPB). The NPB col-
home of one of the twenty (20) most populous cit- lects crime data from the respective Central
ies in the world—Karachi. Though the majority of Police Offices of each province. Though it col-
the population still lives in rural areas, urbaniza- lects crime data at national level, the NPB rarely
tion is increasing at a constant pace. The urban publishes it. The crime rate in Pakistan is increas-
population reached 36.8% by July 1st 2011 (Ibid). ing steadily. In this paper, crime rates were calcu-
With one of the highest fertility rates (3.5) in the lated from the official crime figures provided by
region and increasing urbanization, Pakistan is the National Police Bureau and the population
facing an increasing unemployed population. The figures as published in the Economic Survey of
current unemployment rate is 5.6% (Economic Pakistan 2008–2009.
Survey of Pakistan 2010–2011). Pakistan has the Pakistan’s crime situation has never been a
Human Development Index (HDI) as 0.490 and pleasant one. Not only the ordinary crimes are
was ranked 128th by the UNDP 2010 HDI rank- very high but extra-ordinary situations are numer-
ing in 2010. The population below poverty line ous and varied. Agitations and riots similar to
was 36.10% in 2008 (Economic Survey of Pakistan those of 1958 and 1968, the influx of three mil-
2010–2011). However, the Ministry of Finance lion Afghan refugees in 1980s, the recent effects
estimates that 75% of the population lives near of the war on terror in terms of serious security
both sides of the poverty line (Economic Survey threats, and another three millions of Internally
of Pakistan 2010–2011). Pakistan was placed at Displaced Persons (IDPs) from tribal areas and
number 143/178 in the 2010 Corruption Percep- Malakand Division down to the cities further
tion Index Ranking by Transparency International aggravated the crime situation. However, proper
2011. The US Department of State 2010 report, research and analyses are rarely conducted to
Trafficking in Persons 2011, has also placed evaluate the impact and implications of such
Pakistan in Tier 2 category, a slight improvement social dislocations. Crime figures were published
since 2009 when it was in Tier 2 Watch List.1 with comments from 1947 to 1981, but no such
These socio-economic indicators present a efforts were made after 1981 by the NPB or any
dismal picture of a typical 3rd world country. other agency. The total recorded crimes in 1947,
Pakistan is a source, transit and destination of the year of Pakistan’s independence, were 74,104
many organized crimes like terrorism, human- and 152,782 in 1981 with a crime rate of 247 per
trafficking, drugs, etc and has higher population 100,000 population in 1947 and 182.2 in 1981
growth rate, and ill-conceived urbanization, ris- (Ministry of Interior 2009). The higher crime rate
ing unemployment, low expenditure on education in 1947 can be attributed to the volatile situation
and health with a large portion of population in the post-independence riots, violence, and
extremely vulnerable to poverty, and high rate of internal and external migration across the borders
corruption and crime. of India and Pakistan in 1947.
If we analyze the recorded crime from 1991
onwards, it seems that the crime tide has followed
17.2.2 Situation of Crimes in Pakistan an upward trend. During the last 18 years, the
crime rate rose from 255.52 per 100,000 in 1991 to
Figure 17.2 (Appendix 1) explains that the crime 354.8 in 2008. Police reforms were initiated in a
record is collected at the police station level from time (2001) when the official crime figures were
which it goes to the office of the District Police declining (1998–2001) but which steadily went up
Officer (DPO). The Central Police Office (CPO) after the promulgation of the new police law in
2002 (Fasihuddin 2010). However, this is the situ-
1
The report can be downloaded from the URL http://www. ation of the officially recorded crime rate, which
state.gov/g/tip/rls/tiprpt/2011/. does not, in any way, represent the true picture of
17 Criminology and Criminal Justice System in Pakistan 249
crimes in Pakistan. The real crime rate is yet to be bery (17%). There seems no significant differ-
estimated. Basically, the police reforms initiated ence in provinces in this respect.
by Gen. Musharraf in 2001–2002 were put to seri- Overall, crime against person makes up only
ous fundamental amendments by the successive 15% of the total recorded crime while the crime
political governments, which rendered the reforms against property makes up only 19%. The very
redundant, ineffective, dysfunctional and poorly low crime rates are of course not reflecting the
implemented. In addition to this lack of political real situation of crime, but an ineffective crime
will, never enough resources were provided for recording system and an ineffective justice and
police new units and specialized skills and train- policing system (like in India and China).
ing. Recently, in Baluchistan and Sindh provinces Further, it is to be noted that in the provinces of
the reforms are almost reverted. Punjab and Balochistan, “Crimes against the per-
It is still on the rise. This table is calculated son” is very large as compared to “crimes against
only for this paper and is not available in any property”. In KPK even five times higher. Of
published documents of the NPB or any other course this is not reflecting real existing crime,
government or non-government paper or their but simply shows that crimes against property are
web sites. Such academic work is rarely seen in not recorded. Nearly all over the world, “crimes
any government department in Pakistan, Fig. 17.1. against property” makes up 80% of all crime.
(For details, see Table 17.8 in Appendix 2). Actually, in the Pakistan’s traditional and semi-
Usually, crime in Pakistan is classified under democratic society, people try to avoid reporting
two main heads: (1) crimes against persons and, (2) to the police for theft and burglary as it is an hon-
crimes against property. Crimes against Persons our and prestige problem for many unless serious
include physical harm or force being applied to and sensational. Moreover, police leadership takes
another person. Murder, assault, rape, kidnapping, such crimes as serious inefficiency on part of the
child abuse and violence against women are a few police station staff in the locality. So the lower/field
categories of crimes against person for which data staffs try to avoid such registration of cases and
is collected by the police. The highest incidence of mitigate the seriousness by applying less serious
crime against persons are hurt and injury (36%), sections of the law and also by persuading the
kidnapping/abduction (16%) and attempt to mur- aggrieved party to seek some informal justice
der (16%) against the total of 86,101 crimes against practices for solving property matters.
person in Pakistan in 2008 (Percentages calculated Besides these crimes, the data on crimes for
from Tables 17.8 and 17.9, Appendix 3). The same drugs pushing, narcotics smuggling, cyber crimes
categories of crimes against person dominate in all and trafficking in person are a few categories for
the provinces as well. The crimes of rape and kid- which police do not collect specific data. The
napping are more dominant in the provinces of Anti-Narcotics Force (ANF) is responsible for
Punjab and Sindh than in Balochistan and Khyber data on drugs and the Federal Investigation
Pakhtunkhwa (KPK). Agency (FIA) for some major organized crimes
Among the Crimes against Property for which like human trafficking and smuggling, cyber
the statistics are collected include dacoity,2 rob- crimes, money laundering and corruption in gov-
bery, burglary, vehicle theft and cattle theft. The ernment offices. These two agencies publish their
dominant crimes in this category in Pakistan are annual reports and digests until recently, but have
theft (31%), motor vehicle theft (25%), and rob- since discontinued documentation and analysis.
The official crime rate, presented in this paper,
does not include data from these other agencies
2
Under Pakistan Penal Code 1898, Section 391, Dacoity is as shown in Fig. 17.2. Therefore, the crime rate is
defined as “When five or more persons conjointly commit only calculated from the police official statistics.
or attempt to commit a robbery, or where the whole number To preserve the history of crime in Pakistan,
of persons conjointly committing or attempting to commit
the writer collected and obtained certain crime
a robbery and persons present and aiding such commission
or attempt, amount to five or more, every person so com- data for his Country Report for the 129th
mitting, attempting or aiding is said to commit “dacoity”. International Senior Seminar at the UNFEI,
250 Fasihuddin
Fig. 17.1 Crime Rate in Pakistan-1981–2008. Source: [1] Economic Survey of Pakistan 2008–2009. Table No. 12.1.
p. 194. [2] National Police Bureau, Islamabad, Pakistan
Tokyo, Japan in 2005. These crime figures which department of criminology under its faculties
are not available elsewhere are shown in head.3 Punjab University started the degree pro-
Tables 17.1 and 17.2. gramme in 2009. The Sindh University at
Jamshoro started the Master of Criminology
programme in 1998 and it continues success-
17.2.3 Status of Criminology fully. The faculties hired to teach the courses of
in Pakistan criminology at these universities have very little
competence in the field.
17.2.3.1 Academic Status Four other universities have included crimi-
Unfortunately, criminology as an academic disci- nology as an optional subject in their various
pline and as a profession doesn’t enjoy its social sciences programmes; University of
deserved status in Pakistan. Despite the serious Peshawar offers as an optional subject in the
law and order situation and low socio-economic Department of Social work, Department of
indicators, there is a general apathy on part of the Sociology and Department of Anthropology;
academics and practitioners to promote the University of Sargodha offers as an optional sub-
scientific study of criminology and policing sci- ject in the Department of Social Work; Islamia
ences (Fasihuddin 2008). University, Bahawalpur offers in the Department
There are a total of 133 universities and of Social Work; and Kohat University of Science
degree awarding institutions in Pakistan, 74 and Technology (KUST) offers criminology as
public and 59 private. Criminology is offered as an optional subject in the Department of Social
a separate subject in only three: Karachi Work and Sociology. Unfortunately, this is mostly
University (KU), Sindh University, and Punjab under the sociology or social work departments,
University. The KU started a degree programme and criminology is not offered as an independent
in criminology in 1995–1996 under the discipline.
Psychology Department but it was abandoned
after 1 year. It was again started in 2000. 17.2.3.2 Curriculum of Criminology
However, the criminology department at Karachi The HEC proposed a 2 year curriculum of
University is still controversial and some news- M.Sc. Criminology to be implemented in all uni-
papers (Daily Dawn) alleged the KU of running versities throughout the country but, it was never
a fake department (Faiza Ilyas, January 18, appreciated by any of the academic institution
2010). According to a faculty member, Prof
Dr Burfat of KU, there is no criminology depart-
ment at the campus (Ibid). The official web site 3
For reference please Visit http://www.uok.edu.pk/
of KU does not mention the existence of any faculties/index.php.
17 Criminology and Criminal Justice System in Pakistan 251
due to resources and capacity constraints (See in Pakistan. At the moment, Pakistan has no
Box 1 for HEC proposed curriculum for MSc national institute of criminology, research and
Criminology in Appendix 1). The universities policing and security studies. Even in the private
which offer a criminology degree have devised sector no one has come forward to invest in such
their self-styled curriculum which are not mod- academic endeavours.
ern, scientific and comprehensive. The proposed One of the recent achievements of criminology
curriculum focuses on the very basics of crimi- is to get a place in the optional subjects in the
nology with no specialized subjects (See Boxes 2 Central Superior Service (CSS) examination which
and 3 for Criminology curricula of various uni- is the most prestigious and the highest test for
versities in Pakistan in Appendix 4). Further, the selection of the elite national bureaucracy in
books proposed for the study are often not avail- Pakistan, conducted by the Federal Public Service
able in the market. Furthermore, the local litera- Commission (FPSC) of Pakistan every year. The
ture on the subject of criminology is very scarce, FPSC has asked the Pakistan Society of
even there was no journal of criminology before Criminology to design a curriculum for this
April 2009 when the 1st issue of the Pakistan optional subject vide letter no.F.3-1/2012/
Journal of Criminology was launched (to be dis- CR-11(Criminology) dated April 16, 2012 to be
cussed later). implemented from 2013. It is hoped that this one
The author wrote a book on criminology titled move will revolutionize the promotion of crimi-
Expanding Criminology to Pakistan in which the nology in academic institutions as about a ten
author proposed a curriculum for Master degree at thousand candidates apply for CSS every year and
university (See Box 5). The Governor of the criminology will be likely one of their choice.
Khyber Pakhtunkhwa (KPK, previously known as
North West Frontier Province, NWFP) circulated 17.2.3.3 Criminology in the Trainings
the book to all the Vice-Chancellors of the univer- Besides universities and degree awarding institu-
sities of Khyber Pakhtunkhwa to assess the feasi- tions, criminology has also been lacking in the
bility of introducing the subject of criminology in curricula of the training schools and colleges of
their respective universities (Letter No.PSG- the criminal justice system, particularly the police.
1(2)/2009/43). Unfortunately, no university was Criminology was long taught in the training of the
able to implement the proposed curriculum Assistant Superintendent of Police (ASP) at the
because of limited resources. However, the young National Police Academy (NPA), Islamabad.
scholars in M.Phil., Ph.D., and Masters pro- The course was primarily taught by visiting police
grammes in sociology, social work, psychology scholars who would have done some courses in
and most of the young police officers who get a criminology from local or foreign institutions.
chance on some scholarships to the western world, After the reforms in the ASP course in 1999,
have shown tremendous interest in the study of criminology was excluded from the curriculum for
criminology and criminological research. Most of unknown reasons. Today, police officers in
them wish to initiate similar programmes but have Pakistan complete basic police training with no
yet to do so. The curriculum devised by the author criminological knowledge. The status of criminol-
is basically on the pattern of the usual 2 years ogy in the training academies of other components
course in any social science subject, mostly with of criminal justice system is unknown.
one hundred score/points in each paper. The author
not only has included modern topics and concepts
in it but also has given the further sub-topics 17.2.4 Criminological Literature
under each major subject (as shown in Box 5 in in Pakistan
Appendix 4). The author, moreover, described and
suggested the latest books, journals and web sites There is a severe scarcity of criminological litera-
for the proposed curriculum which was unprece- ture in Pakistan. Some of the police officers and a
dented in the history of developmental criminology few academics wrote books on criminology and
252
Accidents 10.35 10.26 11.11 9.95 9.50 8.99 8.03 9.17 8.77 11.46
Local and special laws 118.43 113.67 103.25 115.60 127.20 116.85 116.04 120.24 122.58 117.42
Miscellaneous 50.94 46.72 51.63 49.92 50.19 46.64 67.95 101.27 82.11 61.52
All reported crimes 266.69 258.95 255.64 278.23 284.65 269.66 295.19 334.11 310.92 287.62
Source: Fasihuddin (Jan–Feb 2005). Country Report on Crime Prevention, Community Policing and Juvenile Delinquency in Pakistan. 129th International Senior Seminar,
UNAFEI, Japan
253
254 Fasihuddin
policing studies.4 These books are often too old 2010), and policing and transnational crime
and/or not easily available in the market. The (Vol. 2. No. 4. Oct 2010) and terrorism and
author’s book, Expanding Criminology to radicalism (Vol. 3. No. 3. Jan 2012). The journal
Pakistan, is the only book freely available on the is freely available at the PSC official web site.6
internet.5 Some of the memoirs of the retired Contributions to the PJC come from all over the
Inspectors General of Police may help some world, including USA, China, Australia, South
researchers in writing the history of police and Africa, UK, Iran, Canada, Turkey, India,
policing in Pakistan. Many of such books are in Bangladesh, Japan, and others. A wide range of
Pakistan’s national language, Urdu. research papers has been published in PJC cover-
ing the areas of drugs, human trafficking, the
criminal justice system, police, prosecution,
17.2.5 Contribution of Pakistan Society prison, courts, child abuse, street crimes, kidnap-
of Criminology ping, cattle theft, violence against woman, cor-
ruption, cyber crimes, suicide bombing, police
The establishment of Pakistan Society of education and training, juvenile justice, problems
Criminology (PSC) in September 2008 and the and constraints in criminological research, and
inauguration of Pakistan Journal of Criminology the limitations of criminological research in
(PJC) in April 2009 was a major step in the devel- Pakistan. More than 75% of all the published
opment of criminology in Pakistan. By 2012, research papers are produced by local scholars. It
PSC published twelve (12) issues including gen- is an indicator of the improving situation of local
eral and special issues covering a wide range of literature on criminology in Pakistan. The remark-
criminological subjects in Pakistan and the world. able achievement of PJC came on 29th March,
The special issues of PJC addressed the juvenile 2012 when the Higher Education Commission of
justice system in Pakistan (Vol. 1. No. 3. Oct Pakistan formally recognized the PJC as an
2009), terrorism, organized crime and law- authentic research journal in “Y” category vide
enforcement (Vol. 2. No. 1. Jan 2010), violence letter no.DD/JOUR/SS&H/2012/2/6.
against women (Vol. 2. No. 2. April 2010), crimi- Besides PJC, the Pakistan Society of
nal justice system in Pakistan (Vol. 2. No. 3. July Criminology also published a book titled
“Expanding Criminology to Pakistan” which dis-
cusses practical issues in criminology in Pakistan
4
e.g. Criminal Justice, Crime Punishment and Treatment in along with an emphasis on the future prospects of
Pakistan by Ch. Abdul Majeed A. Auolakh; Fundamentals criminology and with a proposed curriculum for
of Criminal Investigation: A Handbook for Law Enforcement
the masters level programmes at universities in
Officers by Rana Abdurrazaq Khan; Crime and Criminology:
A Comparative Study in Islamic Republic of Pakistan by Pakistan as mentioned earlier. The book provides
Rana Abdul Razzaq Khan & Ch. Abdul Majeed A. Aoulakh; a wide range of links to the journals, web sites,
Law and Method of Medical Examination and Evidence archives, libraries and books on criminology
with Medical Jurisprudence and Criminology by Masuad
around the world. It further discusses the issue of
ul Hassan Khan; Principles of Criminology and Pakistan
Penal Code (Questions and Answers) by Jamal Abbasi; the practice and field application of criminology
Socio Psychological Aspects of Crime in Pakistan by in Pakistan. Besides this, PSC also published a
Perveaiz Naeem Tariq & Naeem Durrani; Criminology: small booklet “Child Rights, National and
Problems & Perspectives by Ahmed Siddique, Criminology
International Laws and the Role of the Police”
by Justice® Munir A. Mughal; Criminalities : Forensic
Investigation for Law Enforcement Officers by Aftab (2008) which is in Urdu. This small booklet is
Ahmed Kahn; Terrorism in Action by Iqbal Hussain; very useful for the policeman in Pakistan. The
Criminal Justice & The Community and Guidelines for the then Inspector General of Police, KPK sent the
New Entrants into Police Department by M.Y. Orakzai and
booklet to all the police stations of the province
a few Urdu books on the subject.
5
For the book Expanding Criminology to Pakistan, visit
this link http://www.pakistansocietyofcriminology.com/
6
Admin/uploads/ExpandingCriminology.pdf. www.pakistansocietyofcriminology.com.
17 Criminology and Criminal Justice System in Pakistan 255
through an official order. The same booklet has provincial government of Khyber Pakhunkhwa
been used in numerous trainings on juvenile jus- (Registration No. DSW/NWFP/2988). The aims
tice and the police in Pakistan. The PSC designed and objectives of the Society are to create a multi-
a new data-collection system for the local police disciplinary forum to serve the nation through
in KPK, on Juvenile Justice Indicators, as required earnest efforts of dissemination of criminological
by the UNODC and UNICEF. For the first time knowledge and field experiences, both from inter-
since 1934, a new criminal record system was national scholarship and local best practices.
introduced. This practice was replicated in The PSC soon afterwards launched its web
another province, Balochistan, by the National site, and ensured the publication of the Pakistan
Police Bureau. Its report is now published and Journal of Criminology on quarterly basis. The
available online. Moreover, two training manuals Pakistani media is also giving a considerable rec-
on juvenile justice in Urdu language for police ognition to the efforts of Pakistan Society of
were published in 2011 and have been highly Criminology.9 Gradually it is drawing a significant
praised by local police chiefs. attention of the researchers and readers from all
One of the other contributions of PSC to the over the world especially towards its indigenous
criminological literature is the translation of the criminological literature.
book of Prof. Kam C. Wong, Chinese Policing:
History and Reform, into Urdu. Wong’s book pro-
vides a model analytical framework for those who 17.3 Part-II
are currently analyzing a democratic, professional
and responsible policing (Fasihuddin 2011). 17.3.1 Criminal Justice System
A future project of PSC is to launch a National in Pakistan
Institute of Criminology (NIC). PSC has been
working on NIC for the past few years. However, Criminal justice system as a system generated
finding financial support for the project is the key very little attention in Pakistan. The interest in
constraint in the establishment of such an Institute. criminal justice system has been largely sporadic,
and in the words of Dr. Paul Petzschmann (2010),
limited to a few aspects deemed sufficiently “pol-
17.2.6 Professional Organizations of icy-relevant” to merit international interest.
Criminology in Pakistan Criminal justice system in Pakistan is largely an
implanted institution, and amalgamation of
There have been a few professional organizations
of criminological interest in Pakistan including 9
For example, in the most popular daily Aaj, Peshawar,
Association of the Police Service of Pakistan many veteran coloumnists have written specific and spe-
(APSP), and National Council of Criminology cial coloumns on criminology and the role of Pakistan
Pakistan (NCCPAK)7 and the Pakistani chapter Society of Criminology and its President (Dr. Zahoor
of the International Police Association (IPA).8 Ahmad Awan, Daily Aaj, June 15, 2008., Prof. Dr.
Inayatullah Faizi, Daily Aaj, Aug 15, 2008., and three
Unfortunately most of these organizations are consecutive coloumns written by Jamil Marghuz, Daily
defunct and have made no contribution to crimi- Aaj, September 19, 22, & 24, 2011. Another local daily
nology. Only the Pakistan Society of Criminology Jihad published a one page English supplement report on
has made significant contribution to the field. A 29th June 2010. The launching ceremonies of Pakistan
Journal of Criminology have been given considerable
few like-minded academics and police officers coverage by most of the national dailies. The Radio
established the Pakistan Society of Criminology Pakistan FM. 101 channel from Peshawar and Khyber
(PSC) in Sept 2008 and got it registered with the News TV Channel had special interviews with Fasihuddin,
Editor-in-Chief of Pakistan Journal of Criminology on
June 16, 2011 and on September 20, 2011, respectively
which were widely received and propagated. The Khyber
7
Access online at http://nucss.edu.pk/index.php. News TV interview is available on PSC website; www.
8
Website of IPA http://www.ipa-pk.com/. pakistansocietyofcriminology.com.
256 Fasihuddin
precolonial and colonial elements, combined administration of justice primarily rests with the
with variety of Islamic legal interpretations respective provincial governments. That is why
(Petzschmann 2010). police are under the control of the provincial gov-
As in most former British colonies, Pakistan’s ernment for all practical purposes. The federal
criminal justice system is rooted in British politi- government, however, has jurisdiction over mat-
cal traditions (Calafato and Knepper 2009). The ters such as the enactment of criminal laws, the
procedure of criminal justice system in Pakistan, training of certain categories of criminal justice
inherited from 90 years of British rule, is given in personnel, and research, apart from the direct
the Criminal Procedure Code (CrPC), 1898 which law and order responsibility it has for the feder-
provides for case registration and investigation by ally controlled territories (Shoaib Suddle 1995).
the police and the trial in a criminal court. In a Though in all federation systems such arrange-
typical criminal case in the criminal justice sys- ments are inevitable, yet at times, it gives rise to
tem of Pakistan, first of all, a First Information conflict between jurisdictions. Pakistani police
Report (FIR) as per Section 154 of the CrPC is have suffered a lot in this respect, especially after
recorded. The FIR is known as the Register No. I the new Police Order 2002, promulgated by the
in a police-station criminal record, which con- military ruler Gen. Pervez Musharraf and after
tains a total of 25 registers for various records in Pakistan joined the war on terror in the wake of
a locality (see Box 6 in Appendix 5). The police 9/11 attacks. As we will see, both decisions have
officer proceeds to the scene of the crime, where far reaching effects for the police.10
required, and investigates the facts of the case.
After the completion of an investigation, the 17.3.2.1 Police Structure, Organization
Station House Officer (also known as the Officer and Functions
in Charge) of the police station sends a report to Pakistan inherited the colonial criminal justice
the concerned Magistrate or Session Judge, as the system from the British in India. Since the parti-
case may require. This is called Final Report tion of India in 1947, Pakistan has had a rigid
(Chalan). On receiving the police report, the police structure, mostly hierarchical and vertical
Magistrate or District and Session Judge takes in nature and based on the command and control
cognizance and initiates the trial of the case. Once system. As Pakistan is a federation of four prov-
the charges are framed, the procedure requires the inces, law enforcement powers have been divided
prosecution (emphasize added) to prove the between the federal government and provinces.11
charges against the accused beyond a reasonable Provincial police agencies are led by an
doubt. The accused is to be given a full opportu- Inspector General of Police, supported by a
nity to defend himself/herself. If the trial ends in Deputy Inspector General of Police in a region or
conviction of the accused, which is very low in range, who is assisted by a Superintendent of
Pakistan (15%), the court may award any of the Police (SP) in a district. Below him is the Deputy
punishments as prescribed in the Pakistan Penal or Assistant Superintendent of Police who com-
Code, 1860 (or any other applicable special law). mands the subdivision or tehsil (sub district
In this section, we will describe the components level), and below him is the Station House Officer
of the criminal justice system in Pakistan; police, (SHO) who is in charge of a police station, mostly
prosecution, courts, prisons and probation. in the rank of Inspector or sub-inspector. After
the Police Order 2002, most of this nomenclature
17.3.2 Police
10
A major part of this portion was taken from the author’s
previous essays on police in Pakistan.
Police are the first responders to any breach of law 11
For details see Fasihuddin (2010). Police and Policing in
in all civil societies. The Constitution of Pakistan Pakistan: Pakistan. In Ajit Doval and BR Lall (2010).
1973 stipulates that in the provinces the responsi- Police and Security Yearbook 2010-2011. New Delhi;
bility for crime prevention and control and the Manas Publications.
17 Criminology and Criminal Justice System in Pakistan 257
was changed. The IGP is now called the Provincial of the society, media, public, and civil society.
Police Officer (PPO), the SP is renamed as Police are often labeled as “too late to arrive at
District Police Officer (DPO) and the DIG in the the crime scene”, “they are never there when you
big cities is given a new role and authority under need them”, “too violent or passive” etc. The
the new title of Capital City Police Officer deviation of the police from their duties is com-
(CCPO). The Investigation (or detection) is being mon in Pakistan (Fasihuddin 2009). Their func-
separated from the prevention (or watch and tions have been reduced to the same old traditional
ward) and has its own chain of command right duties than the new role envisioned for them in
from a police station level to the SP (Investigation) the new police order. The image of the police as
and Additional Inspector General of Police providing security to the public and winning pub-
(Investigation) at the top, however, subject to the lic confidence is often very tarnished.
general command and control of the SHO in a
police station, of a DPO in a district, of a DIG in 17.3.2.3 Police Recruitment, Training
a region and of the PPO in a province. Prosecution and Education
is altogether cut off from the police and is now A detailed description of the police recruitment,
established as an independent department under training and education has been given by
the new law, the Prosecution Ordinance 2005 Fasihuddin (2009) in his article, Police Training
(See Appendix 6 for the various levels of entries and Education in Pakistan. However, there are
to the police and the organizational structure). numerous problems in the recruitment, training
The police normally are not happy with the and education of the police in Pakistan. The lower
available strength and budget and a demand for level recruitment (constable) is done by the
more recruitment and funds is always on the top District Police Officer. A huge level of corruption
of the police agenda. In the wake of serious terror- and other mal-practices are observed at various
ist attacks, more resources were provided by the levels of recruitment in the police, particularly at
government. For example, only in the province of the lower level. It is a generally accepted opinion
KPK the police strength increased from 48,655 that an unqualified person can be recruited if he/
(2008) to 74,000 (2011). The major portion of the she pays for recruitment. However, there are no
total police budget goes to establishment and empirical findings in this regard.12
management cost (80%), i.e. salaries and allow- The major focus of the police trainings and edu-
ances of the force and only a little (20%) is left for cation at various police training colleges (e.g. Police
the qualitative improvement, capacity building Training College, Hangu, KPK) is on teaching vari-
and professional competence (See Appendix 7). ous criminal laws (e.g. Pakistan Penal Code,
Criminal Procedure Code, Police Rules, Local and
17.3.2.2 Functions of the Police Special Laws, and Evidence Act etc) and physical
in Pakistan training (e.g. combat fighting, drills, rifle musketry,
The universal function of the police is the preven- mob dispersal, traffic control, and assault courses
tion of crime, investigation of crime and main- etc.). The author conducted a small survey of the
taining peace and order in a society. The same lower level police in 2009 in which the police were
applies in Pakistan. To achieve this goal the asked about the major problems of the police.
Police Order 2002, Chapter II, Clauses 3 and 4, Majority (14.8%) of responded that “inadequate
provide a detailed list of activities for the police training facilities/training aides” is the biggest prob-
to carry out. The major functions of the police are lem in the police training. Similarly, it was identified
to protect life, property and liberty of citizens, that the police perceive terrorism to be biggest
preserve and promote public peace, keep order,
etc. (See Appendix 8 for a detail list of functions
of the police). 12
For details see Fasihuddin (2009). Police Education and
However, the effectiveness of the police to Training in Pakistan. Pakistan Journal of Criminology.
perform their duties is questioned by all sections Vol. 1. No. 2. Jul 2009.
258 Fasihuddin
problem concerning policing these days (22%). tive changes. Unfortunately the reports of all such
Criticizing the training curricula, Mr. Syed Akhtar bodies (Appendix 9, Box 7) are not available in
Ali Shah, the Additional Inspector General of Police the market, nor published by any government or
(Special Branch) of Khyber Pakhtunkhwa raised a displayed on their web sites. None of these
question on the launching ceremony of Pakistan reforms came true or implemented in letter and
Journal of Criminology (April 24, 2012) “can we spirit due to a variety of reasons—political, eco-
fight terrorist through teaching these laws and by nomic, legal as well as administrative. The most
such raw trainings to the police?” He doubted the important was the 1985 Commission and the sub-
affirmative answer as more than 500 policemen sequently Implementation Committee (1991)
have been martyred (killed in action) since 2005 findings and Abbas Khan Report (1996) which
and over a thousand have been severely injured in demanded a modern police by replacing the
terrorist attacks.13 police law with a new law, formulation of public
Coming to the impact of the recruitment, safety commission and establishment of national
training and education of the police, the indica- police agency.
tors are not very positive. There are a huge In view of these demands the new Police Order
number of cases in which the culprits are 2002 was promulgated which replaced the Police
marked as untraced by the police.14 Similarly, Act of 1861. It also resulted in the establishment
the police remained at the top of the list of the of National Police Management Board, National
most corrupt public sector institutions in the Police Bureau and the Criminal Justice
National Corruption Perception Survey 2011 Coordination Committee at district level.
report of Transparency International 2011, Concerns were raised soon after the new law
Pakistan chapter. Although the validity and was implemented and it was amended within the
reliability of this survey is challenged on many two months of its implementation. The police
grounds, it still shows the perception of the raised concerns whether the reforms are a posi-
population. Why the public perceive police as tive step. It appeared to be a clumsy grafting of
the most corrupt institution? This merits a sep- the Japanese police model into a semi-demo-
arate research. cratic, semi-tribal, semi-religious and transi-
Likewise, Khan and Sajid (2010) criticized the tional society of a country which was already
poor quality police training and the lack of mod- suffering from extremely poor socioeconomic
ern equipments, and thus commented that the development (Fasihuddin 2008). The new Police
police are the easy targets for the terrorists due to Order, 2002 is highly comprehensive and
these in-sufficiencies. detailed. It is a part of the Access to Justice
Programme (http://www.ajp.gov.pk), mainly
17.3.2.4 Police Reforms in Pakistan funded by the Asian Development Bank. In real-
Although the history of police reform begins ity, the provision of the required human and
prior to independence we focus here on the post- material resources for its proper implementation
independence developments. There have been is yet to occur. Due to the numerous amendments
more than two dozens commissions and commit- in the Police Order 2002, the former senior
tees on revamping, modernizing and reforming officers who supported the new system are now
the police through both qualitative and quantita- disappointed over the lack of true reforms. For
example, Shigri (2005), a retired Inspector
General of Police and a champion of the new
13
Official data provided by SP/Research Investigation, police reforms, terms the amended reforms of
Central Police Office, Peshawar, KPK, Pakistan.
14
2002 as worse than the 1861 Police Act. He
For example, in the province of KPK, out of 14,921
investigated cases in 2012, 1578 were marked as untraced warned of the dreadful results due to the destruc-
(source official data provided by the SP/Research, Central tion of the police command structure. Due to
Police Office, Peshawar, KPK). political exigencies, the present Government of
17 Criminology and Criminal Justice System in Pakistan 259
Pakistan has tolerated significant amendments to until 2005.17 There was a separate prosecution
Police Order 2002 by provincial governments branch of the police consisting of law graduates in
since 2008. Balochistan province has completely the ranks of Deputy Superintendents of Police
reversed it and the KPK has begun to do so. In (DSP), Inspectors and Sub-Inspectors. This was
Sindh, it is reversed one day and restored the considered, however, to be a major reason for poor
other, depending on the political accommodation prosecution and delay in the resolution of court
of the coalition partners. No new Police Rules cases. During the 1980s, a first attempt was made
have been framed in light of the new Police Order to transfer administrative control of prosecution
2002. The 18th Constitutional Amendment for powers from the police to law departments.18 The
devolution of powers has also given rise to ongoing vacillation between the Home Departments
difficult legal questions on the new police law. and the Law Departments on this question contin-
Only time will resolve this current (2011) ambi- ued until prosecution services were permanently
guity in police reforms. placed under the administrative control of the Law
Departments with the promulgation of the Police
Order, 2002. At present, all the provinces have
17.3.3 Prosecution laws for separate prosecution services and the
respective provincial prosecution services are at
Prosecution plays a pivotal role in the administra- nascent stages of development (Mirza 2010).19
tion of justice. A prosecutor or public prosecutor
is an expert of the law to represent the state, in 17.3.3.1 Provincial Organization
court proceedings, against the law breaker. of Prosecution Services: A Case
Prosecution in Pakistan was a branch of police for Kyber Pakhtunkhwa
but it has recently been separated, with a view to The prosecutorial services in KPK were intro-
achieving a more timely resolution of cases. It is duced through the North-West Frontier Province
now made into an independent department after
the promulgation of the Prosecution Ordinance 17
An Asian Development Bank soft loan to Pakistan is de
of 2005.15 facto primarily responsible for the Access to Justice
Program, in which the state is engaged “in improving justice
Prosecutors are covered under section 492 of
delivery, strengthening public oversight over the police, and
the CrPC which provides that the provincial gov- establishing specialized and independent prosecution ser-
ernment may appoint “generally or in any case, or vices”. In this we see the Police Act 1861 being replaced by
for any specified class of cases, in any local area, the Police Order 2002 and new laws to constitute and pro-
vide for the functions of independent prosecution services
one or more officers to be called Public
in Pakistan, thus divorcing prosecution from the investiga-
Prosecutors”.16 As mentioned, the prosecution ser- tive arm of the police. Arguably, more valid grounds can be
vices in all the provinces were under the Home cited for the creation of an independent prosecution service
Department and were administered by the police in Pakistan, being article 175(3) of the constitution, which
mandates that “the judiciary shall be separated progres-
sively from the executive within three years from the com-
mencing day”. Thereafter, there was the appeal decided in
15
A major part of this portion is taken with permission Govt. of Sindh v. Sharaf Faridi (PLD 1994 SC 105).
from the essay of Mashood Ahmad Mirza, Role and 18
In Sindh, for instance, it was done in 1986; see Zahid
Responsibilities of Public Prosecutors in Pakistan, pub- and Wasim 2010, The province of Sindh as a case study on
lished in Pakistan Journal of Criminology. Vol. 2. No.3. the prosecution service: http://www.article2.org/mainfile.
July 2010. php/0704/333/ as on 12 July, 2010.
16
“Public Prosecutor”, means any person appointed under 19
The laws providing for independent prosecution services
section 492, and includes any person acting under the are The Sindh Criminal Prosecution Service (Constitution,
directions of a Public Prosecutor and any person conduct- Functions and Powers) Act, 2009, The Punjab Criminal
ing a prosecution on behalf of the State in any High Court Prosecution Service (Constitution, Functions and Powers)
in the exercise of its original criminal jurisdiction. He is Act, 2006, The North-West Frontier Province Prosecution
bound to assist the Court with his fairly considered view Service (Constitution, Functions and Powers) Act, 2005,
and the Court is entitled to have the benefit of the fair The Balochistan Prosecution Service (Constitution,
exercise of his function. AIR 1957S.C. 389. Functions And Powers) Act, 2003.
260 Fasihuddin
Prosecution Service (Constitution, Functions and in essence is the head of Prosecution in the
Powers) Act 2005. After this Act came into oper- Directorate. He looks after the Establishment and
ation, all prosecution services in KPK province, Accounts Branches and exercises overall control
from the registration of the FIR up to the conclu- over officers of the Prosecution Directorate. The
sion of the case by the Supreme Court of Pakistan, District Public Prosecutors oversee the prosecu-
came under the KPK Directorate of Prosecution. tion functions in the respective districts and all
The 2005 Act has 12 sections. The powers the Assistant Public Prosecutors report and take
of the prosecutor are immense and are given in guidance from the District Public Prosecutor. In
Chapter III.20 The public prosecutor under the cases where the sanctioned posts cannot be filled,
said ordinance is appointed under section 492 the Prosecution Directorate can as a stop-gap
of the CrPC.21 Once the prosecutor receives a measure appoint Special Public Prosecutors from
case file from the police, the prosecutor reviews the respective bars associations.
it and has the option to continue with the pros-
ecution, take no further action or divert it away 17.3.3.3 Major Functions of the
from the criminal proceedings.22 Prosecution Directorate
Normally, the role of the public prosecutor com-
17.3.3.2 Organizational Structure mences after the investigation agency presents
and Responsibilities the case in court. The Investigation Officer and
The Directorate is classified into three sections: the Public Prosecutor work independently of each
prosecution, administration, and accounts. The other in the new system. Prosecuting officers
establishment lies with the Home Department. It assist law courts in the disposal of cases. The
is headed by a Director General assisted by a Directorate aims to deliver a prompt, efficient
Public Prosecutor, Director Legal and Director and speedy service to the litigant for achieving
Administration/Accounts. The Director General the ends of justice, ensuring judiciousness and
speedy legal remedies.23 Cases registered and
investigated by the police are referred to the pros-
20
ecution for scrutinizing charge sheets, and after
See generally Chapter III of the North-West Frontier
their institution in the courts, the Assistant Public
Province Prosecution Service (Constitution, Functions
and Powers) Act, 2005. Prosecutors conducts the prosecution. They eval-
21
“Public Prosecutor” means a person appointed as Public uate the evidence in each case and make their rec-
Prosecutor under this Act for the purpose of section 492 of ommendations for filing revision petitions or
Cr.PC and includes District Public Prosecutor, Additional appeals against impugned orders and judgments,
Public Prosecutor, Deputy Public Prosecutor and Assistant
Public Prosecutor as well as Special Public Prosecutor.
as well as conduct cases in Courts. The public
22
A District Public Prosecutor in case of offences carrying prosecutor has the power to withdraw prosecu-
seven years or less imprisonment and the Director General tion if reasonable grounds exist under section 494
Prosecution for all other offences may withdraw prosecution of the CrPC. Consent will be given by the Public
subject to prior approval of Court. Provided that prosecution Prosecutor only if public justice in the larger
of an offence falling under the Anti Terrorism Act, 1997
(XXVII of 1997), shall not be withdrawn without prior per- sense is promoted rather than subverted by such
mission in writing of the Secretary to Government, Home withdrawal.
and Tribal Affairs Department. See also Section 494 of CrPC,
“Effect of withdrawal from prosecution. Any Public
Prosecutor may, with the ....] consent of the Court, before the
judgment is pronounced, withdraw from the prosecution of
any person either generally or in respect of any one or more 23
“Preamble of the North-West Frontier Province Prose-
of the offences for which he is tried, and upon such with- cution Service (Constitution, Functions and Powers) Act,
drawal: (a) if it is made before a charge has been framed, the 2005 states that “WHEREAS it is expedient to reorganize
accused shall be discharged in respect of such offence or and establish a Prosecution Institution with a view to
offences; (b) if it is made after a charge has been framed, or achieving a speedy justice process in the North-West
when under this Code no charge is required, he shall be Frontier Province and for matters ancillary or incidental
acquitted in respect of such offence or offences”. thereto”.
17 Criminology and Criminal Justice System in Pakistan 261
High Court is re-established for the capital terri- the High Court. Appeals from the courts of
tory of Islamabad. The most important part in Magistrates go to Session Court. All session
criminal justice system is played by the lower judges have the power of the justice of the peace
judiciary i.e. District Courts, Session Courts, and and they can exercise the same powers as the
Courts of Magistrate (See Appendix 11 for the police u/s 54 and 55 of the Code of Criminal
structure of judiciary in Pakistan). Procedure. An ex-officio justice of the peace may
issue appropriate direction to the police authori-
17.3.4.2 District Courts ties concerned on a complaint regarding non-
The district courts of Pakistan are the lowest of registration of criminal case; transfer of
all the courts in the hierarchy, which deal with all investigation from one police officer to another;
the matters pertaining to civil and criminal nature. and neglect, failure or excess committed by a
In every district, there is a Court of Sessions police authority in relation to its function and
Judge, and the Courts of Magistrates have the duties.27 (See Appendix 12 for details).
jurisdiction to try the Criminal cases. The offences
punishable with death and cases arising out of the 17.3.4.4 Judicial Magistrate Courts
enforcement of laws relating to Hudood (Islamic In every town and city there are numerous civil and
Laws) are tried by Sessions Judges. The Court of judicial magistrate courts. Magistrates with power
a Sessions Judge is competent to pass any sen- of Section 30 of Cr.P.C can hear all matters and
tence authorized by law. Offences not punishable offences of criminal nature, where there is no death
with death are tried by Magistrates. Among the penalty (such as for attempted murder, dacoity, rob-
Magistrates there are Magistrates of 1st Class, bery, extortion) but he can pass sentence only up to
2nd Class and 3rd Class. An appeal against the 7 years or less. If the court thinks the accused
sentence passed by a Sessions Judge lies to the deserves more punishment than 7 years then it has
High Court and against the sentence passed by a to refer the matter to some higher court with its rec-
Magistrate to the Sessions Judge if the term of ommendations. Every magistrate court is allocated
sentence is upto 4 years, otherwise to the High a jurisdiction that is usually one or more Police
Court. During the year 2009 the disposal of cases Stations in the area. The trial of all non bailable
in District Courts of KPK province was 79,963 offences including police remand notices, accused
while 19,723 were still under trial at the end of discharges, arrest and search warrants bail applica-
2009 (See Table 17.3 for details). Although the tions are heard and decided by Magistrate Courts.
disposal is higher than the institutions of cases, Magistrate 1st class has the power to try
however, the pendency slows the justice process offences punishable up to 3 years imprisonment
of the courts Table 17.4. and fifty thousand rupees fine. Magistrate 2nd
class has the power to try offences punishable up
17.3.4.3 Session Courts to 1 year and five thousand rupees fine. Magistrate
The jurisdiction of the Session Court extends to 3rd class has the power to try offences punishable
the whole district. It is presided by a session up to 1 month and one thousand rupees fine.
judge appointed26 who may be assisted by one or
more than one additional session judges. All 17.3.4.5 Judicial Reforms in Pakistan
magistrates in the district are subordinate to the In early 2001 a huge programme of judicial
session judge. A Session judge has numerous reforms was initiated with the financial support
powers e.g. to conduct trials of all serious crimes from Asian Development Bank (ADB). The proj-
such as robbery, murder and all kinds of homi- ect was worth US $350 million (P&D 2006). There
cide, serious thefts by habitual offenders etc. A were four (4) main objectives of the programme,
death sentence pronounced by the Session judge
can be carried out only after the confirmation by 27
Amendment through ordinance no OXXXI of 2002 by
inserting Sub section (6) in 22.A of the code of criminal
26
u/s 9 of the code of criminal procedure 1898. procedure 1898.
17 Criminology and Criminal Justice System in Pakistan 263
1. Provide security and ensure equal protection dations of various prisons reform committees
under the law to citizens, in particular the poor; (Khan 2010).29
2. Secure and sustain entitlements and thereby
reduce the poor’s vulnerability; 17.3.5.1 Structure and Functions
3. Strengthen the legitimacy of state institutions; of Prisons in Pakistan
and At present there are ninety-nine (99) prisons in
4. Create conditions conducive to pro-poor Pakistan including Azad Kashmir and Gilgit-
growth, especially by fostering investor’s Baltistan which includes four Women Jails (one
confidence. jail in Punjab i.e. Women Jail, Multan and three
However, the programme did not achieve any of jails in Sindh Province i.e. Women Jail, Larkana,
the set objectives. Women Jail, Karachi and Special Women Jail,
Similarly, the National Judicial Policy (2009) Hyderabad). However, women prisoners are also
was a good initiative by the National Judicial kept in separate portions of other jails.
Policy Making Committee. The policy aims at It also includes two Borstal Institutions and
providing speedy justice. The policy is revised Juvenile Jails i.e. B.I.&J.Jail, Bahawalpur and
recently by the committee, including the objec- B.I.&J.Jail, Faisalabad. Juvenile prisoners are also
tive of “Justice at the Grass-root Level” in the kept in the Youthful Offenders Industrial School,
new revised edition of the policy (2011).28 Karachi and separate portions of other jails of the
country. In his article, Prison System in Pakistan,
Muhammad Masood Khan mentions the objec-
17.3.5 Prison tives of the prison are to provide custody, control,
care, correction and cure of the inmates. As far as
Like all other institutions of the criminal justice the functions of prison is concerned they include
system, Pakistan inherited the prisons set-up from executing the sentence awarded by the Court;
the British colonial period. This system was used maintenance, care, custody and transfer of prison-
as an instrument to suppress political opponents ers; maintenance of orders and discipline amongst
and to neutralize threats to Crown rule. After inde- the prisoners; control of expenditure relating to
pendence, the prisons and prison departments as a prison management; enforcement of Prison Act,
whole remained a low-priority for Government. 1894, all laws, rules/regulations and orders per-
However, prisons remained an exclusively provin- taining to the protection and maintenance of
cial concern in the successive constitutions of the prison/prisoners; imparting useful education/
Republic of Pakistan. Provincial Governments did training to the prisoners in various trades/skills
make efforts to maintain and improve the existing and other vocational disciplines for their rehabili-
prisons. Quite a few numbers of new jails were tation; and organizing of recreational programmes,
constructed in the last 50 years on the recommen- welfare measures and psychological counseling
of inmates for their correction and rehabilitation.
28
For the online version of the revised edition of the
29
National Judicial Policy 2009, please visit the following A major part of this portion is taken with permission
link; http://www.ljcp.gov.pk/Menu%20Items/National% from the essay of Muhammad Masood Khan, Prison
20Judicial%20Policy/Judicial%20Policy%20June%20 System in Pakistan, published in Pakistan Journal of
2011.pdf. Criminology. Vol.2.No.3. July 2010.
264
the age, character, antecedents or physical or sion as evident from the above-mentioned table.
mental condition of the offender, and nature of It means the male probation officers are supervis-
the offence. In case of woman offender, any ing the female probationers in these provinces.
woman can be conditionally discharged having
any sentence except death sentence.32 17.3.6.5 Parole System
Parole contains different meanings depending on
17.3.6.2 Social Investigation Report the context. However, in criminal justice, it refers
After hearing the arguments of the prosecution to the early release of a prisoner who has been
and the defence, if the Court feels the case fit for noted as bearing good conduct during a certain
probation, then it orders the Probation Officer to period of his imprisonment. The law of Pakistan
submit SIR that includes information regarding (The Good Conduct Prisoners’ Probational
the character, antecedents, commission and Release Act 1926) states that a person who is
nature of offence, and home surroundings and confined in prison under a sentence of imprison-
other circumstances about the offender who is ment, and it appears from his antecedents or his
likely to be released on probation. conduct in the prison that he is likely to abstain
from crime and lead useful and industrious life, if
17.3.6.3 Functions of the Probation he is released from prison, he may be permitted
Officer to be released by license on condition that he be
The probation officer performs numerous func- placed under the supervision or authority of a
tions. One of the major functions of the probation suitable person named in the license and willing
officer is to endeavour to find suitable employment to take charge of the prisoner.33 Under the law, it
for the probationer and assist, befriend, advise and
strive to improve his conduct and general condi-
32
tions of living (see Appendix 13 for details of all Section 4 of THE PROBATION OF OFFENDERS
the functions of Probation Officer). However, the ORDINANCE, 1960, Ordinance No. XLV of 1960
4. Conditional discharges, etc. —(1) Where a court by
probation officers can rarely perform most of the
which a person, not proved to have been previously con-
functions prescribed by the law. When asked in an victed, is convicted of an offence punishable with impris-
informal interview, the Director of the Probation onment for not more than two years is of opinion, having
Directorate, KPK, said that “the job scale of the regard to:—(a) the age, character, antecedents or physical
or mental condition of the offender, and (b) the nature of
probation officer is very low, and that there is
the offence or any extenuating circumstances attending the
extreme lack of facilities for the probation officers commission of the offence,that it is inexpedient to inflict
in districts, e.g. no vehicle for travelling etc”. punishment and that a probation order is not appropriate,
the court may, after recording its reasons in writing, make
an order discharging him after if admonition,, or, if the
17.3.6.4 Probation Statistics
court thinks fit, it may likewise make an order discharging
Table 17.6 presents some vital statistics about him subject to the condition that he enters into a bond, with
probation in Pakistan. As on March, 2010 there or without sureties, for committing no offence and being of
were a total of 65 probation officers including 7 good behaviour during such period not exceeding one year
from the date of the order as may be specified therein. (2)
female officers in Pakistan observing 23,197 pro-
An order discharging a person subject to such condition as
bationers in the whole country. It means there aforesaid is hereafter in this Ordinance referred to as “an
were 356 probationers under the supervision of order for conditional discharge”, and the period specified in
each officer—a huge burden indeed. As far as any such order as “the period of conditional discharge”. (3)
Before making an order for conditional discharge, the court
juveniles are concerned, there were a total of 295
shall explain to the offender in ordinary language that if he
juveniles under probation in Pakistan. commits any offence or does not remain of good behaviour
The majority of the probationers in all catego- during the period of conditional discharge he will be liable
ries (91% of all probationers) were in Punjab to be sentenced for the original offence.(4) Where a person
conditionally discharged under this section is sentenced for
province. The province of KPK has 6 female pro-
the offence in respect of which the order for conditional
bation officers while other provinces, except discharge was made, that order shall cease to have effect.
Punjab, have no female probation officer even 33
Section 2 of the Good Conduct Prisoners’ Probational
though they have female probationers in supervi- Release Act, 1926 of Pakistan.
268 Fasihuddin
is called conditional release or Parole release. 17.3.6.8 Functions of the Parole Officer
However, this is the least developed branch of Bhutta (2010) provided a long list of all the
CJS in Pakistan after Probation and Prosecution. functions of a parole officer in Pakistan. The
major functions, among them, were supervision
17.3.6.6 Parole Procedures and rehabilitation of the offenders placed on
When the provincial government identifies a pris- parole, assist prison administration in prepara-
oner with good conduct and it is decided that the tion of rolls of selected prisoners for parole
identified prisoner may be released on parole, than release, and assist parolees in finding suitable
the provincial government through Reclamation employment.
and Probation department issues a license to the It is to be noted that the duties of Parole officers
said prisoner. The prisoner released on parole is are assigned to Probation officers in many districts
called a parolee. The parolee is to be engaged in of Pakistan as there is shortage of Parole staff in
suitable environments under the supervision of R&P department of each province.
Parole officer of the Reclamation & Probation
(R&P) department in his/her respective province. 17.3.6.9 Parole Statistics
The parolees are employed with approved employ- Table 17.7 provides some useful statistics regard-
ers of R&P department on fixed wages and under ing parole in Pakistan. Out of the 17 parole officers,
specific terms and conditions (Bhutta 2010). The 56% are male officers. The highest number of
license is in force until the date on which the per- parole officers is found in the Punjab province, i.e.
son released would, in the execution of the order or almost 59%. However, it is not astonishing by the
warrant authorizing his imprisonment, have been fact that the highest number of prisoner is also
discharged from prison had he not been released found in the Punjab province (66%).
on license, or until the license is revoked, which- As far as the parolees are concerned, there
ever is sooner (Section 3 of the Good Conduct were a total of 191 parolees at March 30, 2010
Prisoners’ Probational Release Act 1926). in all the provinces. All the parolees were male.
More than 50% of the prisoners were on parole
17.3.6.7 Selection of Prisoners Eligible in the Punjab province, while 42% parolees
for Parole Release were found to be from the Balochistan prov-
The cases of prisoners who are likely to be ince, a province with a total of 2,946 prisoners
released on parole may be taken up by the as compared to 52,318 prisoners in the Punjab
Assistant Director R&P department on applica- (See Table 17.11). It appears that the parole
tion of the prisoner, on application of the relative rate is highest in Balochistan province, i.e.
or friend of the prisoner, on recommendation of 27.16 per 1000 prison population as compared
the Superintendent of jail, or the Assistant to 1.89 in the Punjab and less than 1 in other
Director and Parole Officer visit jail for selection two provinces. The reasons are yet to be
of prisoner suitability to be released on parole. researched.
17 Criminology and Criminal Justice System in Pakistan 269
17.5 Appendix 1
Central Police
Prison Prosecution Office/IGP
Department Department Office
Lower
Courts
Home Department
Provincial Govt.
Ministry
of Justice
National Federal
National Crisis
Police Investigation
Management Cell
Bureau Agency High Court of
Province
Anti-
Narcotics Ministry of Interior/Federal Supreme Court
Force Govt. of Pakistan of Pakistan
Ministry of
Justice/Federal Govt.
Pakistan Frontier Anti-Narcotic of Pakistan
Coast-Guard Constabulary Force
17.6 Appendix 2
17.7 Appendix 3
Table 17.9 Province-wise Crimes in Pakistan for 2008
Offence Punjab Sindh KPK Balochistan Total
Crime against person 52,219 19,820 10,419 3,643 86,101
Murder 5,544 2,734 2,896 605 11,779
Attempt to murder 7,201 3,655 2,951 625 14,432
Hurt 23,744 2,839 3,003 1,612 31,198
Rioting 270 5,208 22 313 5,813
Assault on public 1,419 2,551 474 205 4,649
servant
Zina (rape) 2,000 206 153 19 2,378
Gang rape 202 49 3 0 254
Kidnapping/abduction 11,279 2,168 628 207 14,282
Kidnapping for 213 217 129 40 599
ransom
Suicide 3 138 11 0 152
Attempt to suicide 344 55 149 17 565
Traffic accidents 5,306 1,482 2,676 470 9,934
(continued)
272 Fasihuddin
17.8 Appendix 4
Box 1: HEC proposed curriculum for master of criminological sciences
Scheme of studies
The Master in Criminological Sciences is a 2 years programme consisting of four semesters
1st Semester 2nd Semester
1. Paper-I (Core) Fundamentals of Criminology 1. Paper-1 (Opt.)a Islamic Perspective on Crime and
2. Paper-II (Core) Theoretical Perspectives on Crime Punishment
And Criminal Behaviour 2. Paper-II (Opt.) Policing
3. Paper-III (Core) Methods of Research in Criminology 3. Paper-III (Opt.) Forensic Sciences in Criminology
4.Paper-IV (Core) Criminal Justice System 4. Paper-IV (Opt. Terrorism and Violence
5. Paper-V (Core) Correctional Institutions 5. Paper-V (Opt.) Criminal Investigation
3rd Semester 4th Semester
1. Paper-I (Core) Penology 1. Paper-I (Core) Human Rights
2. Paper-II (Core) Community Justice and Crime 2. Paper-II (Core) Criminal Psychology
Prevention 3. Paper-III (Core) Research Thesis
3. Paper-III (Core) Research Thesis In addition to the above cited courses, another two
In addition to the above cited courses, another two courses carrying 100 marks (score) each from among the
courses carrying 100 marks (score) each from among the courses below shall be opted in the fourth semester.
courses below shall be opted in the first semester of
MCS (Final)
(continued)
17 Criminology and Criminal Justice System in Pakistan 273
Box 1: (continued)
Box 1: HEC proposed curriculum for master of criminological sciences
1. Paper-I (Opt.) Drug Abuse and Related Crimes 1. Paper-I (Opt.) Gender and Crime
2. Paper-II (Opt.) Organized Crime and Money 2. Paper-II (Opt.) Cyber Crime
Laundering 3. Paper-III (Opt.) Crime and Security
3. Paper-III (Opt.) Child Abuse and Juvenile 4. Paper-IV (Opt.) Crime and Mental Health Issues
Delinquency 5. Paper-V (Opt.) Procedures of Evidence in Criminal
4. Paper-IV (Opt.) Crime and Criminology in Pakistan Law
5. Paper-V (Opt.) Organizational Behaviour and Human 6. Paper-VI (Opt.) Sentencing-As a Post Conviction
Resource Development Strategy
7. Paper-VII (Opt.) Advance Methods of Research in
Criminology
8. Paper-VIII (Opt.) Crime Typology
Source: Revised Curriculum of Criminology (2003) Higher Education Commission, Curriculum Development Division.
Islamabad: Ministry of Education, Pakistan. available at HEC web site, http://www.hec.gov.pk
a
Optional
17.9 Appendix 5
Box 6: Police existing system of criminal record
Register I: First Information Report (FIR) Register XIV: File Book of Inspection Reports
Register II: Station Diary Register XV: The Register of Births and Deaths. (Vital
Statistics)
Register III: Standing Order Book (2 parts) Register XVI: Register of Government Officials and
Property (4 Parts)
Register IV: Register of Absconders and Deserters. (4 Register XVII: Register of Licenses. (6 Parts)
parts)
Register V: Register of Correspondence (2 parts) Register XVIII: Receipt Books for Arms, Ammunition
and Military stores
Register VI: Miscellaneous Register (4 parts) Register XIX: The Store Room Register
Register VII: Cattle Pound Register (2 parts) Register XX: Cash Accounts
Register VIII: Criminal Tribes Register (2 parts) Register XXI: File Book of Road Certificates
Register IX: The Village Crime Register (5 parts) part-v Register XXII: Printed Receipts Books
as Conviction Register
Register X: The Surveillance Register (2 parts) Register XXII: (a) Police Gazette
Register XI: Index to History Sheets and Personal Files Register XXII: (b) Criminal Intelligence Gazette
(2 parts)
Register XII: Register of information Sheet dispatched Register XXIII: Police Rules
Register XII: (a) Copies of Information Sheets Received Register XXIV: Charge notes of officers in-Charge of
Police Stations
Register XII: (b) Copies of Look-out Notices received Register XXV: Blank Register (Confidential Information)
Register No. XXVI (A)a
Register No. XXVII (A)a
Register XIII: Minute Book for Gazetted Officers
Source: Police Rules, 1934. Chapter XXII Police Station, PR 22.45
a
These two registers were designed and added by the PSC in joint collaboration with Ministry of Human Rights and
Save the Children, Sweden and UNIFEM for KPK Police which are now also added to Balochistan Police. These two
new registers are now fully introduced in two of the four provinces in Pakistan
276 Fasihuddin
17.10 Appendix 6
Fig. 17.3 Police Organization and Administration with Education and Training in Pakistan: Pakistan Journal of
special Reference to Recruitment and Training. & Police Criminology. Vol.1. No.2. July 2009. p. 53
Training College & Source: Fasihuddin (2009). Police
17 Criminology and Criminal Justice System in Pakistan 277
17.11 Appendix 7
Table 17.10 Total Police Budget in Pakistan 2008 (Figures in Millions Rupees)
Area Establishment Other expenditure Development Total
Punjab 24,500.75 4,740.84 1,375.24 30,616.83
Sindh 21,521.46 4,773.86 500 26,795.32
KPK 5,585.622 972.8 636.82 7,195.242
Balochistan 3,761.38 303.36 0 4,064.74
Grand total 55,369.212 10,790.86 2,512.06 68,672.132
Source: Office of the Director General, National Police Bureau, Islamabad, Pakistan
17.13 Appendix 9
17.14 Appendix 10
17.15 Appendix 11
Session Court of
Court Magistrates
Judicial Executive
Magistrate Magistrate
Special
Magistrate of Magistrate of Magistrate of
Judicial
1st Class 2nd Class 3rd Class
Magistrate
District
Magistrate Addl:
District
Magistrate
Sub-
Divisional
Magistrate
Special
Executive
Magistrate
1st Class
Magistrate
2nd Class
Magistrate
3rd Class
Fig. 17.4 Classification of Criminal Courts Under Section 6 of CrPC. Source: Barakatullah (2010). Judicial System of
Pakistan: Pakistan Journal of Criminology Vol. 2. No. 3. July 2010. p. 23
280 Fasihuddin
17.16 Appendix 12
i. Executive
Magistrate
D. Special Judicial
Magistrate
Fig. 17.5 Classification of Courts. Source: Barakatullah (2010). Judicial System of Pakistan: Pakistan Journal of
Criminology Vol. 2. No. 3. July 2010. p. 17. Addl: Additional. Sub. Div: Sub Divisional. Asstt: Assistant
M.A.D.S.J.S. Niriella
concept of restorative justice, its practices and human behaviour and to protect law-abiding peo-
new methods of treating the offender. The study ple from crimes and criminals. According to the
also explains the crime problem in Sri Lanka, general meaning of crime, it is an act that sub-
mentioning the statistical data relating to crimes, jects the wrongdoer to punishment; it is the com-
especially the grave crimes. mission or omission of an act specifically
forbidden by public law or criminal law
(Marckwardt 1995, p. 360; Della 1995, p. 318).
18.2 Statistics of Crime in Sri Lanka People show their denunciation towards crime
by reacting against it either in a formal or an
Commission of crime is an inherent habit of informal manner. Institutions such as family,
human beings which is being changed due to schools, peer groups, organized religions and
various reasons including socio-economic, cul- other organized bodies like factories and compa-
tural and political reasons. The nature and the nies have their own sets of rules based on social
magnitude of the criminal offences have under- norms to react against the member of those insti-
gone a remarkable change over the years. Sri tutions for violating those norms in an informal
Lanka is not an exception to this phenomenon. manner. Some informal responses are labelling,
Among the other factors, rapid economic and ignoring, warning, inflicting mild corporal pun-
social development, 30 years of civil war and ishments and terminating of jobs which are based
changes of lifestyle have provided a consider- only on retributive concept. Similarly, if a person
able influence to the commission of crime. violates criminal law which is a threat to the
Though it is disputed by some groups, the guilty and a separate branch of public law where
increasing brutality of crimes and the crime rate crimes and punishment are prescribed, the soci-
including reconviction and recidivism reveal the ety may file an action against the perpetrator (in
necessity of new way of thinking of crime prob- the name of the State) where the court has the
lem, especially in dealing with the offenders power to impose formal punishment on the
(See Table 18.1). The frequency with which offender according to the law. Thus, societies jus-
crimes are committed is much higher than that in tify the reaction to crime for moral reasons which
the past. This situation directs the policy makers reflect the attitude towards crime, criminal and
to pay their high attention towards the issue. An basic values of a particular society at a particular
effective role of the agencies of criminal justice time.
system in the country is also essential to curb the The formal reaction to crime is carried out by
crime problem (See Table 18.2). The following the criminal justice system which has the main
statistics may impart a rough idea of the crime goals of upholding social control, deterring
problem in Sri Lanka. crimes, sanctioning those who violate criminal
The crime rate of Sri Lanka has gradually laws with punishment and rehabilitating and rein-
increased in the past years. The following statis- tegrating them into the society as law-abiding
tics revealed the gradual increase of grave crime citizens. There are three types of application of
in Sri Lanka during the last 5 years. laws in relation to the criminal behaviour of a
person (criminal justice): retributive justice based
on punishment, distributive justice based on ther-
18.3 Response to Crime apeutic treatment of offenders and restorative
and Retributive Justice justice based on restitution (Eglash Albert 1977,
pp. 91, 92; Daniel and Strong 1997, p. 24).
Reaction or response to crime has been diverse at Retributive justice is a theory of justice which
different periods of human civilization. Even at a considers that punishment is a morally acceptable
particular time it has been different in various response to crime, with an eye to the satisfaction
societies. Certainly, there is a necessity of reac- and physiological benefit bestowed to the
tion to crime in order to control certain unlawful aggrieved party and society (Retributive Justice).
18 Thinking for New Horizonin Criminal Justice... 285
Table 18.1 A brief statistical figure of grave crimes from 2005 to 2010
Category of the
criminal offence Offence and the section 2005 2006 2007 2008 2009 2010
Offences against Abduction 953 1,190 1,229 1,239 947 897
body other than (Sections 350–352) and 1,749 1,856 1,675 1,367 1,368 1,410
sexual offences Kidnapping 4,666 4,163 3,642 3,250 2,920 2,939
(Penal Code) (S. 353) 1,221 2,045 1,663 1,488 958 745
Grievous hurt
(Section 311 amended by Act
No. 22 of 1995)
Simple hurt (Section 312)
Homicide (Section 293 and
294) and Abetment of commit
suicide (Section 299)
Attempted homicide (Sections 466 576 468 397 298 308
300 and 301)
Sexual offences Rape (Section 364 amended by 1,540 1,462 1,397 1,582 1,624 1,854
(Penal Code) the Amendment Act No. 22 of 429 418 475 457 441 519
1995) and Incest (Section 364 451 362 366 340 346 334
(A) amended by the
Amendment Act No. 22 of
1995)
Unnatural offences (Section
365): Grave sexual abuse
Sexual exploitation of children
(Section 365 B) amended by the
Amendment Act No. 22 of 1995
Offences against Sections 114–127 None 9 8 21 9 15
the State (Penal
Code)
Offences relating Sections 225–248 35 28 37 34 52 38
to coins (Penal Sections 138–157 27 19 17 10 14 14
Code)
Offences against
public tranquil-
lity (Penal Code)
Convention on Trafficking of Human Being 15 35 30 33 31 47
Preventing and and Procuration
Combating
Trafficking in
Women and
Children for
Prostitution Act
No. 30 of 2005
Offensive Offences under Offensive 482 723 668 511 636 277
Weapons Act Weapons Act
No. 18 of 1966
Firearms Possession of Automatic or 78 73 39 91 51 80
Ordinance No. Repeater Shot Gun
33 of 1916
Poisons, Opium Trafficking of drugs, import or 508 362 572 511 636 862
and Dangerous possession
Drugs
Amendment Act
No. 13 of 1984
Source: Administration Reports Published by the Inspector General of Police (the year 2011 statistics are not
available)
286 M.A.D.S.J.S. Niriella
Table 18.2 Grave crime summary from the year 2005 to 2010
2005 2006 2007 2008 2009 2010
Cases recorded 59,391 61,196 56,454 57,340 60,870 57,560
Total true cases 59,075 60,932 56,215 57,182 60,693 57,381
Cases ending with convictions 2,269 2,251 2,192 3,341 2,885 3,437
Cases ending with discharge or acquittal 350 288 196 140 216 749
Total disposed 23,366 22,410 19,705 19,040 21,195 21,661
Total pending 35,709 38,522 36,510 38,142 29,800 34,809
Source: Administration Reports Published by the Inspector General of Police (the year 2011 statistics are not
available)
It is probably the most ancient justification of reac- offender is to be punished simply due to the
tion to crime (Gobert and Dine 1993, p. 22). Under commission of crime. It is clear in the philosophy
retributive justice, crime is an individual act where established by the retributive advocates such
the liability for the commission of the act is as Mabbott (1969, pp. 39–64), Murphy (1994,
defined as punishment. The criminal responsibility/ pp. 44–77), and Moberly (1996, p. 145).
punishment is imposed only on the particular per- According to these retributive advocates the
petrator according to the magnitude of the offence rationale behind retributive justice is that a good
committed by the perpetrator. This idea was deed deserves to be crowned with a reward
expressed by the biblical dictum: eye for an eye and whereas a bad deed should be meted out with a
tooth for a tooth. In primitive societies/tribal societ- bad reaction, namely, suffering without consider-
ies where the concept of retributive justice was well ing the consequences. Their suffering should be
established, the offender was regarded as an enemy of the same magnitude as that of their victims.
of the tribe and he/she was punished with the same The inherent threats/sufferings of punishment
severity of the offence in order to get the revenge may deter crime and sometimes change the
from him/her. This notion was present in the Hebrew behaviour of the offender as to a better person.
Doctrine of Divine Sanction which was subjected Under the retributive justice, crime is under-
to the will of Jehovah and Mosaic Law. Further, the stood as an offence against the State and
Code of Hammurabi, the oldest written ancient defined as a violation of the law. Another fea-
penal practice, accepted that the punishment ture of the retributive justice emphasizes the
imposed on the offender should be equal to the adversarial relationship between the accused
weight of the crime as literally as possible (Dyneley and the State, and the victims of crime are
2010, pp. 601–609; Packer 1968, pp. 37–38; Munshi peripheral to the justice process and repre-
2003). However, even today, retributive justice is sented abstractly by the State. According to the
appreciated in “just deserts” (proportionally) prin- general feature of the adversary system, in the
ciple in many parts of the world. traditional and conventional model of judicial
As one of its main characteristics, retributive system of trial, the State has all the rights to
justice focuses on establishing guilt on the past conduct the prosecution and impose punish-
behaviour of the wrongdoers and the offenders ment on the offender. (Adversarial system is a
are perhaps considered as an unwanted group of judicial system of trial in English legal system
people who deserve to suffer due to wrongful (practiced in Great Britain, most common-
behaviour. In other words retributive justice is a wealth countries, and the USA except the US
process of backward-looking and punishment State of Louisiana and Canada’s Quebec prov-
that is warranted as a response to a past event of ince). In this system, a case is argued by two
injustice or wrongdoing. It acts to reinforce rules opposing sides who have the primary responsi-
that have been broken by the offender and bal- bility for finding and presenting facts. The
ance the scales of justice. Therefore, the main prosecutor tries to prove the defendant is guilty,
purpose of the retributive justice is that the and the defendant’s attorney argues for the
18 Thinking for New Horizonin Criminal Justice... 287
defendant’s acquittal. The case is then decided (financial punishment) and manodanda (mental
by a judge and punishments are prescribed.) punishment).
Therefore, when a crime is reported, the State Death, mutilation, flogging, whipping by cane,
starts to discharge its responsibility assuming banishment, downgrading to the Rhodiyas (the
the State as a party of the criminal case while people who belonged to the lowest cast in ancient
placing the victim in the category of a mere wit- Ceylon), putting into jail (dangage/maha hirage)
ness. The main agencies in the criminal justice and cutting off hair were the modes of corporal
system pay whole attention only to the offender punishment. Death, mutilation and flogging were
to punish or otherwise rehabilitate him/her and imposed on offenders for serious offences such
the victim is regarded as a mere witness in the as murder, conspiracy against King, etc.
battle between the State and the accused (Barrett Reprimand was a verbal punishment imposed for
2001, pp. 1–2; Hogg 1992, p. 836). minor offences to show anger and disapproval of
crime in the Sinhalese law which comprised
Buddhist law, Hindu law, Tesawalamai law,
18.3.1 History of Criminal Justice Islamic law and Mukkuwar law but today is more
System and Retributive Justice commonly referred to as Kandyan Law (Cooray
in Sri Lanka 1971, p. 3). Being cursed was represented in
manodanda inflicted for minor offences.
In examining the history of criminal justice sys- Confiscation of properties was the common mode
tem in Sri Lanka, five main distinct periods represented in dhanadanda.
could be identified according to chronological The Portuguese arrived in Ceylon in 1505
order, namely: period before the European pow- A.D. (Cooray 1971, p. 4). By the Malwana
ers occupied the island (before 1505 A.D.), Convention,1 an Ordinary and a Supreme Tribunal
period during the Portuguese occupation (General’s Court) were established to hear minor
(1505 A.D.–1656 A.D.), period during the criminal matters and serious offences, respec-
Dutch occupation (1656 A.D.–1796 A.D.), tively. By the same convention the Portuguese
period during the British occupation (1796 A.D.– agreed to administer the laws of the Sinhalese in
1947 A.D.) and post-independence period the coastal areas where they were settled and in
(1947 A.D.–to date). power (Cooray 1971, pp. 26 and 194; Nadaraja
During the reign of Kings in ancient Ceylon, 1972, p. 5; Tambiah 1977, pp. 3, 4 and 27).
the King was the top of the hierarchy of Courts Therefore, they did not introduce their own sys-
and the source of all justice. With regard to the tem of law to Ceylon (Tambiah 1977, p. 4). Thus,
criminal justice system during this period, the the laws relating to punishment during the period
hierarchy of Courts made it possible to appeal of the Portuguese occupation appear to have been
from a judgment of the lowest Court, i.e. the Sinhalese laws (Cooray 1971, p. 5).
Gansabhawa, the lowest Court (council) which The Dutch occupied Ceylon in 1656 A.D.
had both civil and criminal jurisdiction in cases They ruled the Maritime Provinces (Coastal
of petty offences and in boundary disputes Areas) from 1656 to 1796 and introduced their
(Hayley 1972, pp. 59–62), to the King (Hayley law, the Roman Dutch Law, to Ceylon (Cooray
1972, pp. 58–73). History shows us that the 1971, p. 194; Nadaraja 1972, p. 5; Tambiah
retributive justice was the dominant theory 1977, pp. 3, 4). Criminal justice was adminis-
adopted by the criminal justice system in ancient tered in Radd van Justitie (the High Court of
Ceylon as well. Literature of the legal history of Justice) in the case of serious criminal offences.
the country reveals some important information Further, judicial power was exercised by certain
of punishment (danda). There were four main European officials such as the fiscal, the chief
types of danda based on the retributive concept:
They were kayadanda (corporal punishments),
1
vachidanda (verbal punishments), dhanadanda This Convention came into operation in 1957.
288 M.A.D.S.J.S. Niriella
residents and some military officers, and the been governed by various political parties elected
local chiefs such as disavanis and korala (local by Sri Lankan citizens. Although these govern-
officials who had the power to hear minor crimi- ments introduced numerous laws under their legis-
nal matters over local persons). Dutch also con- lative powers, there was no significant alteration in
tinued to impose the same modes of punishments either the substantive criminal law or the law of
used by the Portuguese. criminal procedure, except for a few amendments.
The British occupation of Ceylon is reported as With regard to the Penal Code, some significant
of 1796 A.D. They captured all parts of the amendments have been introduced where punish-
Maritime Provinces which were under Dutch ment is concerned, e.g. the Penal Code (Amendment)
power. By introducing a number of reforms to the Act, No. 22 of 1995, and the Penal Code
law operating in the Maritime Provinces, the (Amendment) Act, No. 29 of 1998. Two very
British developed the administration of justice. important changes were made to the criminal proce-
British rulers issued several important dure, namely, the Administration of Justice Law
Proclamations to reform the existing penal system No. 44 of 1973 and the Code of Criminal Procedure
at that time. By the Proclamation of 23rd of (CPC) Act No. 15 of 1979. Furthermore, recently a
September 1799, torture and all kinds of inhuman few amendments were introduced to the CPC Act.
and barbarous forms of punishment (specially the Among them the CPC (Amendment) Act, No. 17 of
public execution) were abolished. A uniform sys- 1997, the CPC (Amendment) Act, No. 47 of 1999,
tem of Court procedure and a uniform system for and the Community Based Correction Act, No. 46
execution (hanging) were introduced by the of 1999, are most important for the purpose of the
Proclamation of March 23rd 1826. All degrading present study.
and inhuman modes of punishment were prohib-
ited by the Proclamation of 04th October 1799. By
regulation No. 04 of 1820, all kinds of mutilation 18.3.2 Present Criminal Justice
were prohibited. The classification of crimes and System and Retributive
establishment of a new Supreme Court of criminal Theory of Justice
justice consisting of the Chief Justice were intro-
duced by the Charter of 18th April 1801. The for- Similar to the other countries, until recently, the
mation of a uniform system of justice throughout criminal justice in Sri Lanka has been dominated
the Island was introduced by the Charter of 1833 by retributive justice based on punishment. The
on the recommendation of the Colebrook Cameron State maintains law and order, ensures confor-
report. The whole Kandyan criminal law (criminal mity with its rules and prosecutes and punishes
law which applied to locals) was abolished and the those who violate it. The Police, the Court and
“Law of the Maritime Provinces” was substituted the Prison and other Correctional Centres func-
by Ordinance No. 5 of 1852. The Penal Code tion as main State Institutions in this process. The
Ordinance No. 2 of 1883, a model of the Indian Penal Code Ordinance No. 2 of 1883 and the
Penal Code of 1860 which was based on English CPC Act No. 15 of 1979 are the main Acts which
Law Principles, was introduced in 1883. Section 3 set out the legal provisions for dealing with crim-
of the Penal Code expressly abolished the Roman inal matters in Sri Lanka.
Dutch criminal law in order to settle the uncertain- The existing procedural law relating to criminal
ties in the general law. The Criminal Procedure cases is set out in the CPC Act enacted in 1979.
Code of Ceylon was introduced in 1882 to govern The rules relating to police investigation, arresting
the procedure relating to criminal matters in the the suspect, searching the premises, releasing sus-
country. It was replaced by the Criminal Procedure pect/accused on bail, instituting the proceedings
Code No. 15 of 1898 which remained until 1973. and conducting trials and appeal are laid down in
Sri Lanka gained independence in 1948, and for this legal code. Further, the provisions (sections 13
the purpose of this study the intervening period up and 14) in the CPC permit the Magistrate’s Court
to the present time will be discussed. Sri Lanka has and the High Court in First Instance to hear crimi-
18 Thinking for New Horizonin Criminal Justice... 289
nal cases, and to impose punishments on the con- crime rate. The conclusion of the report has revealed
victed offender under the provisions of the Penal no observable relationship between the homicide
Code or any other written law which prescribes death rate and the practice of executing offenders
any act as a criminal offence. for murder. Since Buddhism is declared as the
The substantive criminal law of Sri Lanka is official religion in the country, offenders cannot be
embodied primarily in the Penal Code and other executed without violating the First Precept which
Statutes which prescribe some human behaviour prohibits killing of any live object.
as criminal offences corresponding with punish- As far as the history of prisons in Sri Lanka is
ment. The legal system in Sri Lanka provides concerned, the new prison system that evolved in
penal provisions (section 52 of the Penal Code) Britain was introduced to the British colonies
for some modes of punishment such as the death during 1844. The Department of Prisons came
penalty, rigorous and simple imprisonment, for- into existence first affiliated to the Police
feiture of property, fine and whipping. This struc- Department under the Act No. 18 of 1844. During
ture of the modes of punishment in the Penal that period the supervisions and control of all
Code confirms the retributive approach in prisons in the Island were vested in Inspector
responding crimes. The dominated view of “just General of Prisons. The office of Inspector
deserts” compelled the criminal justice system to General of Prisons was held by the Inspector
prosecute in the name of the State and punish the General of Police until 1905. The prison and
wrongdoers more commonly with imprisonment police departments were separated under two
or fine according to the magnitude of the criminal departments thereafter. At present the Department
offence. Death and forfeiture of property are the of Prisons is functioning under the Ministry of
other two modes of punishment inflicted on per- Prison and Rehabilitation of Sri Lanka. The
petrators in Sri Lanka under this compelling Department of Prisons constitutes the Prison
notion of just deserts. However, until 2005 whip- Headquarters, Centre for Research and Training
ping was a permissible mode of punishment and in Corrections, Closed Prisons,2 Remand
was repealed by the Corporal Punishment Prisons,3 Work Camps,4 Open Prison Camps,5
(Amendment) Act enacted in 2005.
The death penalty is a classic example for the
application of retributive theory of punishment. In 2
There are three closed prisons in Sri Lanka, namely,
Sri Lanka, the death penalty has been imposed for Welikada, Bogambara and Mahara. Welikada Closed
few crimes such as murder, treason and drug Prison is for the first offenders, who had been adm-
itted to prison for the first time. Bogambara Closed
offences under the criminal law of the country. Like Prison is for the reconvicted prisoners, those who
the other countries, imposing the death penalty as a had been admitted to the prison for the second
punishment has been a subject of controversy over time. Mahara Closed Prison is for the recidivists,
many years in Sri Lanka. Though there is a public who had been convicted and admitted to prison more
than twice.
outcry to re-implement the death penalty in Sri 3
There are Twenty Remand Prisons in Sri Lanka. Those
Lanka, it is an abolitionist in practice that has not prisons are situated in Cololmbo, Kandy, Tangalle, Jaffna,
executed any offender during the past 34 years and Anuradhapura, Batticaloa, Badulla, Galle, Matara,
established a practice of not carrying out execu- Negombo, New Magazine, Kegalle, Tricomalee, Kalutara,
tions. The State has also paid attention to the imple- Boossa, Kurunegala, Polonnarwwa, Retnapura and
Vavunia.
mentation of the death penalty by appointing law 4
Work camps are prisons without a perimeter wall where
reform commissions such as “Morris Commission” prisoners are sentenced with short term (less than 2 years)
(the four-member commission appointed by the or medium term (2 years to 5 years) of imprisonment and
Governor General, after the assassination case of the offenders are detained under minimum security condi-
tions. The eight work camps are in Watareka, Meethirigala,
Prime Minister S.W.R.D. Bandaranayake, to report
Navodawa, Weeravila, Anuradhapura Kuruwita,
the practical utility of the death penalty) to examine Wariyapola and Kandewatta.
the practical utility of capital punishment, especially 5
There are two Open Prison Camps in Sri Lanka at
as a better mode of punishment in reducing the Pallekelle and in Anuradhapura.
290 M.A.D.S.J.S. Niriella
Training Schools,6 Correctional Centres for who were discharged from prison was 31,442.11
Youthful Offenders,7 Work Release Centres8 and This shows that 1,01,177 prisoners were kept in
Lock-ups.9 The prison system of Sri Lanka con- our prisons in 2010. From the year 2000 the
sists of 4,325 prison officials of Uniformed Staff reconvicted and recidivism rate has gradually
and 180 of Non-uniformed Staff. In the year 2010 increased12 and in the year 2007 the number of the
the percentage of the un-convicted prisoners was direct admission of reconvicted prisoners and
66% (approximately) and the convicted prison- recidivists was higher than the first offenders
ers’ percentage was 33% (Prison Statistics 2010). (prison statistics 2010).13 Thus the above-said
Ratio of convicted to un-convicted prisoners in figures reveal that the crime wave continues to be
the year 2010 was 1:3. In such a situation the high in Sri Lanka and the statistics further disclose
present prison system in Sri Lanka is far behind the failure of retributive justice in the country.
in achieving its main goal concerning the reha- An effective policing system is necessarily
bilitation of prisoners. important in controlling the crime statistic (crime
The Department of Prisons has to play an rate). As mentioned earlier, the Portuguese who
important role in carring out custodial sentences controlled certain areas of the Maritime Provinces
(imprisonment) and non-custodial sentences and of the country did not effect any serious changes to
orders (home detention, supervision, community the existing criminal justice system of the country.
work and release on conditions) imposed by Sri The concept of policing in Sri Lanka started with
Lankan Courts. The prison statistics reveal that the Dutch who saddled the Military with the respon-
the number of direct admissions of both convicted sibility of policing the city of Colombo. It was the
and remand prisoners has considerably increased Dutch who established the earliest police stations
during the last decade.10 In the year 2010, the which were initially established at the northern
number of direct admissions of both convicted entrance to the Fort, the cause-way connecting Fort
and remand prisons was 1,32,619 and the number and Pettah and Kayman’s Gate in Pettah. In addi-
tion to these the “Maduwa” or the office of Disawa
of Colombo, who was a Dutch official, also served
as a Police Station for these suburbs.
6
Two Training Schools attached to our prison system for In 1805 under the British rule, the police func-
the youthful offenders and situated in Pallansena and tions were defined clearly. Apart from matters
Ambepussa.
7
connected with the safety, comfort and conve-
There are two Correctional Centres for Youthful
Offenders in Pallansena and Taldena. Offenders between nience of the people, police functions also came
the ages of 16 and 22 are sent to these correctional/reha- to be connected with prevention and detection of
bilitation centres. Taldena correctional centre is an open
camp and Pallansena Correctional centre has both a closed
prison and an open camp. 11
Release on bail 294, on punishment 18,644, on payment
8
Sri Lanka has only one Work Release Centre. of fines 9,326, on special occasions 2,978.
9 12
There are 28 Lock-ups in Sri Lanka in Ampara, Reconvicted and recidivism number together: 2000—
Avissawella, Balangoda, Balapitiya, Chilaw, Elpitiya, 8,160, 2001—10,300, 2002—11,303, 2003—12,833,
Embilipitiya, Gampaha, Gampola, Hambantota, Hatton, 2004—12,925, 2005—16,408, 2006—13,618, 2007—
Kalmunai, Kalutara, Kilinochchi, Kuliyapitiya, 16,430, 2008—16,401, 2009—18,596, 2010—12,597.
Kurunegala, Maho, Mannar, Matale, Mullaitivu, Nuwara These statistics were obtained from the Prison Statistics of
Elliya, Panadura, Point Pedro, Puttalam and Vavuniya. Sri Lanka Published by the Statistics Division, Prison
10
The number of the direct admissions of both convicted Headquarters Sri Lanka.
13
and un-convicted prisons from year 2000 to 20007 is as Reconvicted and recidivism number together: 2000—
follows: 2000—89,325, 2001—95,725, 2002—107,210, 8,160, 2001—10,300, 2002—11,303, 2003—12,833,
2003—116,216, 2004—114,354, 2005—129,014, 2006— 2004—12,925, 2005—16,408, 2006—13,618, 2007—
117,922, 2007—130,819, 2008—135,820, 2009— 16,430, 2008—16,401, 2009—18,596, 2010—12,597.
146,760, 2010—132,619. See Prison Statistics of Sri These statistics were obtained from the Prison Statistics of
Lanka Published by the Statistics Division, Prison Sri Lanka Published by the Statistics Division, Prison
Headquarters Sri Lanka 2010 p. 24. Headquarters Sri Lanka.
18 Thinking for New Horizonin Criminal Justice... 291
crime and maintenance of law and order. The p. 1). Under this theory, justice means an
Police Ordinance No. 16 of 1865 was enacted in exploration of solutions which encourage and
1865. 1866 could be considered as the beginning support restoration, mediation/reconciliation
of the country’s present Police Service in Sri agreeing by victim, offender and the community
Lanka (www.police.lk/index.php/crime-divi- where victims of crime take an active role in pro-
sion). Since then the police force is primarily cess (Braithwaite 2002, 249). Restorative justice
responsible for assuring the security of the people requires an offender to take responsibility for
and their properties in the country. They are to act his/her offence to take steps for restitution of
as the effective law-enforcing agency to maintain the victim (Daniel and Strong 2001, p. 106), pro-
law and order in the country. After the emergence moting the maximum involvement of the two
of Sri Lanka as an independent and sovereign parties in the process at the highest level of
State, it has become more essential for the police victim satisfaction and offender accountability
to achieve the above-said goal in marinating law (Sharman and Strang 2007, p. 36). Since restor-
and order in the country. With the change of the ative justice maintains that increased crime is an
social structure and other social phenomenon overall failure of society, it provides an opportu-
great responsibility has been entrusted with nity for the offender to meet his/her personal
police to curb the crime. However, in the present needs, rehabilitate offenders, help rebuild their
scenario in Sri Lanka, the police are required to life and reintegrate them into better persons.
engage in many nonpolice works which are not Restorative justice principle mainly aims at four
within the parameters of the main objectives of key values. They are giving opportunity for the
police, i.e. prevention and detection of crimes. encounter of parties (where the victim, offender
The above discussion shows us that retribution and the others in the community involved in the
is not a proper answer to the crime problem in the crime meet), compelling the offender to take
country. It further reveals that retributive theory necessary steps to repair the harm caused from
fails to control the crime rate, keep society safe, the crime, helping the restoration of both parties
rehabilitate prisoners and reintegrate them to the (this includes third person who involved in the
society as law-abiding citizens. crime initially) and opening the opportunity for
both parties to participate in finding a resolution/
decision. Restorative justice could be found in
18.4 Restorative Justice and New victim offender mediation, restorative or family
Means of Treating the Offender conferencing, healing/sentencing/peacemaking
circles, victim/ex-offender assistance, restitu-
Restorative justice (reparative justice) is an tion, police cautions and non-custodial measures
approach to justice whereby all the parities with such as probation, conditional discharge, sus-
a stake in a particular offence come together to pended sentencing and community-based
resolve the problem collectively and how to corrections.
deal with the consequences of the offence and Among those methods, the justice system of
its implications for the future (Wright 1991; Sri Lanka adopts only a few, i.e. victim offender
Marshall 2000, p. 2). This approach of justice mediation, restitution (compensation to the
focuses on the needs of both parties of the case, victim), probation, conditional discharge,
i.e. needs of victim and offender as well as the suspended sentencing and community-based
needs of the community instead of satisfying correction. Although the programmes relating to
the hard legal principles and punishing the ex-offender assistance (aftercare service) are not
offender. Unlike retributive justice, restorative institutionalized or implemented in a proper
justice observes crime as a violation of human manner, some religious and social service groups
relationship (Zehr 1990, p. 35) and crime is an help the ex-prisoners to overcome the economi-
offence against the individual and community cal and social problems which they come across
rather than the State (Rotman 1990; Marty 2001, after being released from prison.
292 M.A.D.S.J.S. Niriella
18.4.1 Victim Offender Mediation No. 22 of 1995,15 enables Courts to impose a com-
pensation order as a mandatory punishment16 with
In Sri Lanka the police are involved in the ami- imprisonment for sexual offences17 and offences
cable settlement of minor (criminal and civil) dis- dealing with cruelty to children.18 However, except
putes. There efforts towards settlement of minor the offences stated above, under that particular
disputes have begun to arise from statutory duty amendment, the Sri Lankan legislature does not
stipulated on them to prevent crime and maintain provide for legal provisions, which empowers the
law and order in the country. In the 1950s the pro- Court to order compensation as an integral part of
cess of settling minor criminal disputes was punishment. Thus far, the Sri Lankan Courts have
officially entrusted by way of administrative not tendered a compensation order on the State or
direction 1998; the Mediation Boards Act No. 72 otherwise Sri Lanka does not have any other alter-
of 1998 was passed by Parliament, having the native mechanism such as “State Compensation
objective of providing the people in the country Board” where the offender is unable to pay the
an opportunity to follow a less cost-effective compensation. This situation shows us that the
mechanism to settle their minor disputes with the offender is disregarded under the present law relat-
agreement of both parties. Therefore, the Act ing to compensation to the victim.
provides for the legal framework for institution-
alizing Mediation Boards, which are empowered
to resolve by the process of mediation all disputes 18.4.3 Community-Based Corrections
referred to it by disputing parties, as well as by
Courts in certain instances. At present the Community-based correction is a permissible
Mediation Board has the criminal jurisdiction mode of punishment in Sri Lanka. As an alterna-
over affray, causing hurt, grievous hurt, wrongful tive to prison sentence, the Magistrate Court may
restraint, wrongful confinement, force, criminal order community task on an offender, for a num-
force, assault criminal misappropriation, criminal ber of hours stipulated by the Court within a cer-
trespass, house trespass, insult and criminal intim- tain period of time. If the offender fails to carry
idation. A large number of the disputes handled out the work assigned on him/her, he/she will be
by the Boards relate to these criminal offences. In dealt with by the Court by imposing any other
the Mediation process the mediator encourages appropriate punishment. The present law relating
the parties towards negotiation by coordinating to Community Service Orders was first intro-
the large number of people involved in the matter, duced in Sri Lanka by the Administration of
improving communication, helping them to gen- Justice Law No. 44 of 1973. Section 18(1) of the
erate options, assessing alternatives to agreement
14
and bringing such agreements to closure. Section 17(6) of the CPC Act, No. 15 of 1979.
15
Section 364 of the Penal Code (Amendment) Ordinance,
No. 22 of 1995, says that whoever commits rape shall,
except in the cases provided for in subsection (2) (3), be
18.4.2 Compensation to the Victim punished with rigorous imprisonment for a term not
exceeding twenty years and, with a fine, shall in addition
Section 17 of the CPC Act No. 15 of 1979 pro- be ordered to pay compensation of an amount determined
by the court to the person in respect of whom the offence
vides necessary legal provisions for the court in was committed for the injuries caused to such person. For
order to compensate the victims of a crime or their more see section 364(2) (g) of Penal Code (Amendment)
dependants. Through compensation order Courts Ordinance, section 365, as amended by the Penal Code
may direct the offender to repair the loss or dam- (Amendment) Ordinance, No. 22 of 1995.
16
ages caused to the victim. Usually, compensation Inoka Gallage v Addaraarachchige Gulendra Kamal
Alias Addaraarachchi 2002 1 SLR 307.
is recovered from the fine (as an ancillary order), 17
Sections 364 (1) and (2), 365 A of the Penal Code
which is imposed for an offence 14 as decided by (Amendment) Ordinance, No. 22 of 1995.
the Court in the decision of Rabo v James (32 NAL 18
Section 303 (A) (2)of the Penal Code (Amendment)
91). But the Penal Code (Amendment) Ordinance, Ordinance, No. 22 of 1995.
18 Thinking for New Horizonin Criminal Justice... 293
imprisonment was introduced into our penal law serving a term of imprisonment or the offender is
in 1973, and section 239 of the Administration of yet to serve the term of imprisonment which has
Justice Law laid down the provisions relating to not been suspended.27
suspended sentencing for the first time. Section According to the statutory provisions, Courts
303(1) of the CPC Act, No. 15 of 1979, which may suspend the sentence of imprisonment
provided for suspended sentences has been wholly or partly. Frequently, Sri Lankan Courts
amended twice in 1995 and 1998. Section 303 of (both Magistrate’s Courts and High Courts) pre-
the CPC Act, No. 15 of 1979, as amended by the fer to suspend the whole term of imprisonment,
CPC (Amendment) Act, No. 47 of 1999, lays especially where there is a plea of guilty. But
down the existing provision for suspended sen- there is considerable doubt whether the Sri
tences of imprisonment in Sri Lanka. Before the Lankan courts in practice utilize the partly sus-
amendment of the CPC Act, No. 20 of 1995, pended sentence as a form of punishment where
came into operation, suspended sentencing of the accused has pleaded guilty. Even in severe
imprisonment had been restricted to cases where crimes such as culpable homicide not amounting
the sentence of imprisonment was more than 2 to murder, rape, etc., the Sri Lankan Courts sus-
years22 or where persons were convicted for grave pend the sentence of imprisonment wholly. For
crimes. Under section 2 of the CPC Act, No. 20 example, in the following High Court orders28 the
of 1995, although it was applicable to cases where Court suspended the whole term of imprisonment
imprisonment is for less than 2 years, if the stat- after it had taken into account the plea of guilt. At
ute provided that a particular sentence of impris- this point one may argue that in such cases the
onment is mandatory, the offender was not court should not impose a suspended sentence by
entitled to a suspended sentence. This provision considering the plea of guilt as the only sentenc-
was amended by section 2 of the CPC ing factor. Moreover, according to sec. 303 (1)
(Amendment) Act, No. 19 of 1999.23 At present, (b) of the CPC (Amendment) Act, No. 47 of
a suspended sentence is imposed under this Act 1999, the Court should consider the nature and
for cases where the sentence of imprisonment is gravity of the offence. In considering the cases of
for not more than 2 years,24 where the law does murder, rape and robbery they are crimes severe
not provide a mandatory minimum imprison- in nature, and for these crimes suspended sen-
ment,25 where the offender committed the offence tence may not be the appropriate type of punish-
while he or she was not on a probation order, con- ment. Therefore, especially when a person
ditional release or discharge;26 the offender is convicted for a heinous crime such as rape, rob-
bery and culpable homicide not amounting to
22
Section 303 (1) of the CPC Act No. 15 of 1979 says that murder the Court should carefully exercise its
“A Court which imposes a sentence of imprisonment on discretion in the imposition of a suspended sen-
an offender for a term not exceeding two years for an
offence may order that the sentence shall not take effect
tence on plea-bargaining. This may be a reason
unless, during a period specified in order, being not less that the legislature introduced the mandatory
than five years from the date of the order (hereinafter minimum sentencing rule in 1995.
referred to as the ‘operational period’) such offender com-
mits another offence punishable with imprisonment (here-
inafter referred to as ‘subsequent offence’)”.
23
According to section 2 of the CPC (Amendment) Act, 27
Section 303 (2) (b) of the CPC (Amendment) Act, No.
No. 19 of 1999 “a mandatory sentence of imprisonment 47 of 1999.
was changed to a mandatory minimum sentence of 28
In some murder cases where an accused pleaded guilty
imprisonment”.
24
to the offence culpable homicide not amounting to mur-
Section 303 (2) (d) of the CPC (Amendment) Act, No. der, the term of imprisonment was suspended by High
47 of 1999. Court: Kurunegala H.C.85/95; H.C 89/95; Negombo H.C.
25
Section 303(2) (a) of the CPC (Amendment) Act, No. 47 675/87. In some rape cases where an accused pleaded
of 1999. guilty, two years rigorous imprisonment was suspended
26
Section 303 (2) (c) of the CPC (Amendment) Act, No. for five years by High Court: Kurunegala H.C. 99/95(rape);
47 of 1999. Kandy H.C. Jury 1226/92 (rape).
18 Thinking for New Horizonin Criminal Justice... 295
Moberly Walter. (1968). The ethics of punishment. p. 144 Tambiah, H. W. (1977). The judicature of Sri Lanka in its
in Paranjape NV (1996) Criminology and penology, historical setting. Colombo: M.D. Gunasena & Co.
Central Law Publications, Allahabad. Ltd.
Murphy, J. G., & Marxism and Retribution in Duff Antony Thompson Della. (1995). The concise Oxford dictionary
and Garland (Eds.). (1994). A reader on punishment. of current english. New York: Oxford University
New York: Oxford University press. Press
Munshi, M. H. Director General, Department of Social Wright Martin. (1991). Justice for victims and offenders.
Services, Ministry of Welfare, Bangladesh (2003) 9th Philadelphia: Open University press
World Conference on the treatment of the offenders in Zehr Howard. (1990). Change lenses: A new focus for
New Century, ACPF Today, Asia Crime Prevention criminal justice. Pennsylvania: Herald Press.
Foundation, Tokyo, Japan.
Nadaraja, T. (1972). The legal system of Ceylon in its his-
torical settings. Leiden: E.J. Brill Ltd.
Packer Herbert. (1968). The limits of the criminal sanc- Websites
tion, Stanford University Press, Stanford
Rotman Edgardo. (1990). Beyond punishment, a new view en.wikipedia.org/wiki/Retributive_justice-visited in May
of the rehabilitation of criminal offenders. Westport, 2011.
CT: Greenwood Press http://www.jstor.org/stable/3153895 visited in May 2011.
Sharman Lawrence, W., Strang Heather. (2007). Restorative http://www.vorp.com visited in June 2011.
justice: The evidence. London: Smith Institute
An Overview of the Criminal Justice
System in Taiwan 19
Charles Hou
1
The director in general of NPA is Wang Cho-chiun (王卓
C. Hou, Ph.D. (*) 鈞), a graduate of the Graduate School of Criminology at
National Taipei University, Taipei, Taiwan National Taipei University. He assumed his office in
e-mail: [email protected] 2008.
the welfare of all the citizens. And there are about tics data in other agencies, then, to obtain a clear
75,000 police officers to fulfill these functions.2 picture of crime in Taiwan.
In Taiwan, there is a police bureau in each city However, the police agencies still handle the
and county. And, there are several police districts majority of crime in Taiwan. The statistics from
in each police bureau. The Police booth, pai-chu- other crime control agencies are much smaller in
suo (派出所), similar to Kuban in Japan, is the scope than those from the police bureaus.
smallest police unit in Taiwan and a couple of Therefore, police crime statistics are helpful for
booths are installed in each police district. Police us to understand the general crime scenario and
officers are required to take shifts and take care of trends in Taiwan.
the daily operations within their own booths. The following analyses are about crime char-
There are many other special police forces acteristics in Taiwan. Analysis is based on the
other than the regular police bureaus in cities and police crime statistics (National Police Agency
counties. These special police forces are designed 2011). Firstly, in the year 2010 there were about
to oversee the social order and social security in 6,700 violent crimes, including murder and non-
special locales and settings. For example, we negligent manslaughter, kidnapping, robbery,
have Criminal Investigation Bureau to investigate forceful taking, serious injury, intimidation, and
and examine certain violations and serious forcible rape, which occupied about 1.8% of all
crimes. We also have Aviation Police, Highway the offenses in Taiwan.4 The violent crime num-
Police, Harbor Police, and Railway Police, along ber was 10,000 in 2000 and 14,000 in 2005; to
with some other special types of police forces to compare from 2010 data this shows a sizable
meet the needs and security in various settings. reduction for the past years. Secondly, property
There are about 30,000 offenses identified by crimes, such as auto and motorcycle theft, bur-
the police each month in Taiwan. In the year glary, petty theft, and grand theft, ranked at the
2010, there are about 360,000 offenses recorded.3 top of all offenses. For example, in 2007 they
However, the statistics were much higher in past were about 240,000 theft-related crimes, occupy-
years. For example, the number of offenses ing 49% of all offenses known to police on that
known to police was around 430,000 in 2000 and particular year. Like violent crime, the numbers
550,000 in 2005. There was a significant reduc- of theft-related offenses was reduced substan-
tion in crime statistics in past years, which is tially during past years. In 2000, there were about
similar to the United States and many other areas 300,000 cases and about 142,000 cases known to
of the world (Federal Bureau of Investigation the police in 2010, showing a 50% reduction in
2010). The official crime statistics in Taiwan 10 years. I suggest three factors which might con-
derive from police administrative statistics. These tribute to the reduction of theft offenses in Taiwan.
are the data processed by the police agencies, Firstly, it is the increasing levels of education in
either proactively or passively. The other crime the population in Taiwan. We understand that the
control agencies such as the Investigation Bureau, theft offenders are often from the less educated
the Prosecutor’s Office, or the Coast Guard population. And, it requires one to learn skills
Administration have their own crime statistics and motives to become a member in the profes-
and they report their recorded data annually. sion. A formal education would frustrate one to
Therefore, the crime statistics known to police do learn such skills and motives. Secondly, the rapid
not reflect the whole picture of the crimes in aging population in Taiwan also makes it difficult
Taiwan. One still has to look into the crime statis- for the thieves to recruit new members. Finally,
the prevalence of CCTV and security devices all
over the island of Taiwan also contributes to the
2
The number of police officers per 100,000 residents are
326 in Taiwan, which is larger than 223 in Japan, 250 in
the United States, and 275 in the United Kingdom.
4
3
Here, the crime rate is about 1,565 per 100,000 Here, the violent crime rate was about 29.13, much
population. smaller than 403.6 in the United States in 2010.
19 An Overview of the Criminal Justice System in Taiwan 299
reduction of the incidence of theft. Many crimi- vey found 70% of the respondents showing their
nals were apprehended through the photos taken favorable ratings of national police, including
on the CCTV cameras and in turn it produced an police politeness, fairness, and integrity. However,
effective deterrent for motivated offenders. only 46% of the respondents thought favorably
Thirdly, fraud is an emerging problem in about police crime fighting performance. This
Taiwan. For the past 10 years, there were about indicates that a high proportion of the people
40,000 cases of fraud every year. The property expect police to do a better job. The survey was
losses are estimated to be NT$100 billion a year. also able to locate some of the factors shaping
However, the good news is that the number of public perceptions of police, including gender,
victims decreased to 30,000 in 2010. age, and individual level of fear of crime. The
Unfortunately, property losses were still enor- study suggests that efforts are needed to narrow
mous. Telephones were used to play confidence the social distance between the police officers
games and players now move to the cyber world and the general public.
to find victims. The fraud games involve sales or Science and technology are dominating the
purchases of goods, having romantic relation- world now, and because of this many potential
ships, a good return of investment, promises of a criminals turn their attentions to computers and
huge heritage to be given, or winning a lottery. the Internet to commit crimes. According to the
However, it always ends with a fiction, not a Taiwanese police annual report in 2007, there
reality. were about 30,000 computer-related offenses
Police do have many responsibilities in Taiwan. (National Police Agency 2008) and 38% of them
They take calls for assistance, such as lost and were Internet-related fraud and 30% of them
found services and victim services of the crime. were sexual trade-related offenses. There were
They stay on the street to direct traffic, especially other computer crimes, such as cyber bullying,
during rush hours, and they provide services of cyber stalking, spreading viruses, and cyber
protection for women and children. Moreover, intimidations in Taiwan. Specialized enforcement
police are required to implement community agencies are being created to fight against cyber
police measures, advocating the concepts of good- crimes. These agencies are on duty to apprehend
will and charity, and having a good relationship any possible violations in the cyber world.
with the community. And, naturally, they have to After 38 years of lack of communication dur-
take responsibilities concerning the combat of ing the military conflict and cold war, Taiwan and
crimes, such as drug trafficking, possessions of the People’s Republic of China started a dialogue
illegal firearms, frauds, and so on. At the top of in November 1987. At the beginning, people
the above duties, police are also required to take a were allowed to visit their relatives. As a conse-
close look at potential criminals, such as the listed quence, it brought about tremendous increases in
gang members and ex-convicts to ensure good trade, cultural, social, and personal exchanges
social order in the community. Previously, they across the Taiwan Strait. However, justice agen-
were required to make a home visit to every house cies were not allowed to make contacts and it
in the community. The police home visits were resulted in a vacuum of law enforcement. Many
required by law, as one of the police duties. The Taiwanese fugitives fled to China to escape the
police officers showed up at the house to check legal sanctions. Later, in the year 1990, an agree-
the members of a designated residence. However, ment, the Kim-men Agreement (金門協議), was
in 2007, the Taiwan Legislative Yuan passed a law signed by representatives of the Red Cross
to cancel this police practice due to strong opposi- Foundations of Taiwan and Mainland China, to
tion from the public. Legislators also criticized combat illegal immigrants and criminals and a
the fact that practices of home visits had created procedure of the exchanges for those deported
additional workloads for the police (Wu 2007). was established. The trades were conducted on
In 2011, a survey on Taiwanese perceptions of the sea by people from the two sides of the Red
police was conducted (Jou et al. 2011). The sur- Cross Foundations. According to the statistics, a
300 C. Hou
total of 49,817 people were exchanged between correct. Recording is permitted during the police
1987 and 2006. interrogation. Moreover, if unlawful or excessive
In 2007, President Ma Ying-jeou (馬英九) uses of force are used by the police officials, the
assumed political power in Taiwan, and started to suspects can report this to the prosecutors for
boost the cross strait relations in a pragmatic way. investigation. The evidence of crime through the
Mr. Chiang Pin-kung (江丙坤), the chairman of excessive use of force would be treated as illegal
the Straits Exchange Foundation, and Mr. Chen and cannot be used against the suspects.
Yun-lin (陳雲林), the chairman of the Association Finally, the author would like to address an
for Relations Across the Taiwan Straits, were issue relating to police law enforcement on hoo-
able to meet seven times and signed sixteen ligans/gangsters. In 2008, the law was discussed
agreements. Among them, the “Agreement on by the grand judges, similar to the constitution
Joint Cross-Strait Crime-Fighting and Mutual court in many countries, and was declared to be
Judicial Assistance” was signed in April of 2009 unconstitutional, effectively making the police
in Nan-jing (南京), China, and in <6 months, the power of combating gang members illegal.
first criminal, a con man, was deported from Previously, Taiwanese police officers were
China to Taiwan through direct flight. This began allowed to arrest gang members and refer them to
a new and historical era that enabled police the court for up to a 1-year sentence. However,
officers in Mainland China (called public secu- the grand judges issued an opinion saying that the
rity officials (公安)) and the Taiwanese police to law concerning the definition of gang members is
work together to fight against crime. After the unconstitutional due to the ambiguity in acts
agreement, they have cooperated on nine occa- defining gang members. According to this law,
sions in 2009 and ten occasions in 2010. The gang member behavior could involve occupying
majority were fraud-related offenses, emerging turf, dining without pay, loafing on the streets,
rapidly these days. and committing indecent behaviors.
In the following, the author examines the due The grand judges also issued another opin-
process rights concerning the handling of sus- ion saying that police arrest without the appear-
pects by the police. ance of the arrestees is illegal. Often the police
Many people understand that American police invited scholars, prosecutors, and senior police
officials would read the Miranda warning when officers to decide if a violation of hooligans’
they make the arrests: “You have the right to law has occurred. The suspects then were not
remain silent; anything you say can be used invited to the meeting, which the grand judges
against you in a court of law; you have the right make it against the spirit of the criminal justice
to the presence of an attorney; if you cannot procedure. The grand judges argued that any
afford an attorney, one will be appointed for you person, if detained, should go through a public
prior to any questioning if you so desire.” The hearing to ensure a proper law enforcement
Taiwanese police officers do not have to read procedure.
these warnings to the suspects to ensure their Now, the hooligans are handled according to
legal rights. However, the suspects do enjoy some the common criminal code as well as other spe-
of the due process rights, including legal assis- cial statutes passed by the congress, the
tance, self-incrimination, and exclusionary rule. Legislation Yuan in Taiwan. Police are required
However, the nature of due process rights is not to follow the general procedure of criminal
exactly the same as that of the United States. arrest. Although the police officers do not have
In Taiwan, a criminal suspect is not required the legal ground to arrest gang members easily,
to answer police inquiry questions if the suspect they still work hard to fight against crime.
is not accompanied by a lawyer. They can also Arrests are often made in the name of crimes
refuse to answer any question after sunset and against the code of organized crime, and a viola-
before sunrise. They can also check the wordings tion of the criminal code, such as intimidation,
of inquiry and make sure that the contents are battery, or fraud.
19 An Overview of the Criminal Justice System in Taiwan 301
The following statistics would give you the gen- its functions, and the 48 h would meet the needs
eral picture. In 2010, the number of new cases to for this flexibility. In Taiwan, a criminal suspect
be handled by the 1,200 district prosecutors was if arrested is required to be sent to the court within
412,553. This translates that there are about 1 or 24 h, only half of the detained hours used in the
2 cases a day added to the list of daily criminal United States. This also means that the Taiwanese
investigation numbers. Usually it takes an aver- police officers and the prosecutors have to share
age of 50 working days to deal with a case. the 24 h together. Most of the time, police officers
Prosecutors take new cases every day and they could have 16 h and the remaining 8 h belong to
have to exam every case brought to their offices. the prosecutors. Although, the Taiwanese police
At the top of the above-mentioned workload, officers and prosecutors cannot detain an arrested
Taiwanese prosecutors are required to check into suspect as long as they want, they still need to ask
suicide cases, and there are about 4,000 suicides permission from the court for a continuous deten-
a year. Expectedly prosecutors are facing a tre- tion provided that the suspect has committed a
mendous workload. “Prosecutors are too busy” serious offense and a detention for further inves-
is a complaint often heard from the lawyers, and tigations is needed.
it has become a subculture in the prosecutor’s In the United States, for a serious offense, it
office. requires a grand jury to investigate and decide if
We have just mentioned that prosecutors han- prosecution is needed. A grand jury is organized
dle the majority of their cases referred by the by the prosecutors and members from the com-
other agencies. In 2010, the police referred munity. The purpose of the grand jury is to inves-
292,742 cases which account for about 71% of tigate if the criminal act constitutes a probable
the cases that the prosecutors handled. There cause for the criminal offense. The grand jury
were also 1,683 cases referred by the Investigation will call the defendant for a public hearing so
Bureau, and meanwhile 13,470 cases were that an adversary procedure is assured.
brought in through litigations from the general However, there is no grand jury arrangement in
public. Obviously, the majority of cases handled Taiwan. The accused can show up before the
by the prosecutors are from the police. According prosecutor and make statements. On the other
to the statistics, 95% of the cases from the police hand, no one except the lawyer can be allowed at
ended with a verdict in the courts, meaning that the hearing due to the confidentiality of criminal
the quality of crime investigation by the prosecu- investigation.
tors is good. In Taiwan, 3% of the prosecutors’
cases at the local level are self-litigations, brought
in by the general public. However, the number of 19.4 Plea Bargaining
statistics has been increasing for the past years
due to the increasing awareness of the legal rights Plea bargaining is practiced in many countries. It
in Taiwan. Now, in Taiwan prosecutors would not is an agreement in a criminal case where the
handle personal litigations without the assistance prosecutor allows a less serious charge provided
of a lawyer. the defendant agrees to his or her wrongdoings.
In the following the author addresses the due In Taiwan, the prosecutors have the power of
process rights relating to the discretionary power exercising the plea bargain procedure in the jus-
of a prosecutor. tice system. The prosecutor meets with the defen-
Speedy trial is a constitutional right for all dant and his or her lawyer to negotiate a possible
Americans. There is a due process rule, the 48-h punishment for the wrongdoings before the
rule, in the United States that the accused should accused is brought to the court. In 2004, the legal
be brought to the judges within 48 h. In 1991, in system in Taiwan formally adopted the practice
the case of California vs. McLaughlin, the United of plea bargaining for the purpose of reducing the
State Federal Supreme Court argued that the burdens on the courts while ensuring that justice
criminal justice system needs flexibility to ensure in the society is maintained. A prosecutor can
19 An Overview of the Criminal Justice System in Taiwan 303
call for a negotiation with the defendant and the crime courts are installed to handle civil law suits
defendant’s lawyer after a formal charge is for- as well as criminal cases, minor in nature. Petty
warded to the court. They meet in order to reach crime court also takes case in violation of social
a possible conviction. Plea bargaining in Taiwan security codes.
can only be used when the defendant admits his The court is crucial in the criminal justice sys-
or her wrongdoing. It is also applicable when it tem since this is where the justice is finalized. If
involves with minor offenses. Crimes punishable a verdict is reached in the court, punishment will
by capital punishment, life sentence, or a follow. It could be a fine of some amount of
confinement of more than 3 years are not permit- money, a work service in the community, proba-
ted for plea bargaining. tion for a period of time, or a confinement in jail.
It has been several years since Taiwan started to If no verdict is reached, one simply leaves the
exercise the plea bargaining policy and there is now a criminal justice system. One cannot pursue his or
total of about 10,000 cases ending with plea bargain- her justice from within the prison system. That is,
ing. Drug offenses are most likely to be called for a one cannot exercise the right of appeal to reverse
plea bargain by a prosecutor. Fraud, falsification of his or her course in the system from the prison to
documents, and petty theft are also offenses where a the court. In Taiwan, there is one exception. For
prosecutor often calls for a plea bargaining. the death penalty case, the Prosecutor General
There is another practice which is close to the has the right of appeal to ask the court for another
concept of plea bargaining commonly practiced in trial. In this case, one might be able to change the
the United States. In 1991, a Petty Crime Court course after the court has already made the final
system was installed in Taiwan. For minor offenses, verdict for the defendant.
provided that the accused admits his or her offense, In Taiwan, there are three levels of court. The
a prosecutor would refer it to the Petty Crime local court, or the district court named in Taiwan,
Court. In this court, the defendant is not allowed to is the lowest level which serves the function of
appear and the judge exercises the judicial discre- intake of cases in the court system. The high court
tion according to the documents and statements is the second level, above the local court, and the
from the prosecutor’s office. However, the discre- highest court is the court of last resort of justice.
tionary power of the judge is limited to a Theoretically, the three levels of the court act
confinement of less than six months. The due pro- independently. They exercise their own discre-
cess rights of public hearings and confrontation of tionary authority. However, all the cases are pro-
witnesses do not apply in the Petty Crime Court. cessed from the lower level of the court and then
From the above, it is obvious that prosecutors move up to the next level. The use of the right of
serve two major functions; criminal investigations appeal can only be utilized in the two lower levels
and prosecutions. We mentioned how the Taiwanese of the court. However, it is not guaranteed that all
prosecutors exercise their powers in the system so the cases are legally allowed to enjoy the right of
that crime can be brought to justice. Subsequently, appeal. The court limits the use of appeal, unless
we will discuss the role of the judges in Taiwan. there is a need of special appeal for the Prosecutor
They enjoy the largest power in the criminal justice General or there is an adequate reason for retrial.
system. However, the system can be very problem- However, in most of the criminal cases, the ver-
atic if they overly abuse their powers. dicts can bring their cases to the higher level of
the court to look for the opportunity of changing
their fate in the system. These practices of appeals
19.5 Judges: The Sentencing at different levels of court are very common in
Decisions most of the countries in the world.
There are about 1,800 judges in Taiwan.
The purpose of the courts is the handling of civil Among them, the local courts have a majority of
law suits. They also handle criminal cases as well the judges, about 1,200. There are about 400
as juvenile delinquent cases. In Taiwan, petty judges in the high courts and about 80 in the
304 C. Hou
highest court. The remaining are at the adminis- constitutional right to appeal his or her case from
tration court and the public functionary disciplin- the highest court to the constitutional court. The
ary sanction commission and other administrative constitutional court in Taiwan could operate to
branches of the court. deal with the impeachment of the president and
The administration court is very special in vice president and it also operates to deal with the
Taiwan and operates to handle disputes between legal status for a political party. These are their
citizens and administrative bodies. Everyone has major and only powers.
the right to bring his or her cases to the adminis- The grand judges in Taiwan have another
tration court if he or she finds the administration power, which is the power to interpret the law
agencies to be unfair. This may concern a fine on including all governmental rules and regulations.
violations of the traffic laws, or tax laws, or can The grand judges meet together, express their
be any decisions based on the constitutional rights independent opinions, and come to a conclusion
of the citizens, such as meeting or having an by vote. The latest meeting issued by the grand
organization. However, one cannot pursue the judges was on November 4th, 2011. There have
justice at the administration court without going been 692 cases issued by the grand judges since
through the appeals at the previous administra- 1949. A recent case involved a Taiwanese busi-
tive agency. One has to ask for justice from the nessman, working in Mainland China, applying
previous government unit before one can bring for tax deduction for his daughter studying at
the case to the administration court. This special Peking University. The Taiwanese tax agency
administration court has only two levels, the high rejected his application for the reason that chil-
court and the highest court, and there are about dren studying at a university not recognized by
75 judges to run this system. the Ministry of Education in Taiwan does not
In Taiwan, there is a special design for the qualify for tax deduction. Peking University was
constitutional court. It consists of 15 grand not a recognized legal institution by the Taiwanese
judges. The constitutional court has the power to Government at the time the said case happened.
dissolve a political party which violates the con- However, the grand judge ruled that the practice
stitution. This court also has the power to impeach from the tax agency was unconstitutional since
the president and vice president. Other than the tax deduction for children is designed to help the
above two powers, the grand judges also have the parents to achieve their responsibility of taking
power to interpret the constitution, or the law and good care of their children, regardless of where
administration regulations. To date, however, they stay or what school they study in.
they have never exercised their power to impeach The grand judges in Taiwan take cases from
a president or a vice president, and they have all the highest governmental bodies in Taiwan.
never sought to dissolve a political party. They can be the executive branches or the justice
The grand judges are nominated by the presi- branches. They can also take cases from the leg-
dent and the confirmations are made in the con- islation branches. In addition, they can take cases
gress, the Legislation Yuan in Taiwan. This part from the general public, the interest groups, or
of the operation is very similar to the justices in the political parties as long as there is a need for
the United States. However, the following points the grand judges to provide an opinion on law.
are different. The Taiwanese grand judges have a According to the statistics of the court in 2010,
term limit, 8 years of service for a term only. By the grand judges took 541 cases. Among them,
law, they are not allowed to set a second term. 12 were from the governmental bodies and the
However, all the nine members of the Supreme remaining were from the general public.
Court Justices in the United States are life term Obviously, it is quite simple for general citizens
appointed. Moreover, the Supreme Court is the to bring their cases to the grand judges, as long as
highest level, whereas the constitutional court of cases are points needing interpretation. However,
Taiwan organized by the grand judges is not. most of the time, it is very difficult for cases to
Therefore, one cannot take the advantage of the appear. In 2010, the grand judges finalized a total
19 An Overview of the Criminal Justice System in Taiwan 305
of 561 cases, with only 14 explanations. And, the the other court. The inconsistent decisions made
remaining cases were dismissed by the grand by different level judges have raised a concern
judges. about whether justice can be done in the court, or
In Taiwan, the courts are very busy, busier if there is a fair trial in the court. This is the rea-
than the prosecutors’ office and the police son that Taiwanese describe the judges as “dino-
bureaus. More and more people now bring their saurs.” They are influential and they can do
cases to the court. Criminology textbook describes whatever they want. In the September of 2010, a
a filter process phenomenon in the criminal jus- female group in Taiwan mobilized a social move-
tice system, where cases are reduced as they go ment, the white rose movement, which intended
through the justice system. However, you will be to protest against judges abusing their powers,
unable to see such a filter process in Taiwan. On particularly, in regard to sexual predators’ cases,
the contrary, the district courts have the largest where the judges made apparently lenient pun-
number of cases in the system. For example, in ishments. The protestors took white roses and
2010, there were 1,075 serious criminal cases, marched on the streets to express their distrust of
477,261 criminal cases, and 48,000 juvenile the judges. The group also asked for professional
delinquent cases. As described earlier, the police evaluation to be established for all the judges.
forwarded about 360,000 cases a year and there A survey conducted by Jou et al. (2011)
are about 410,000 cases at the prosecutors’ office. showed that 68.5% of the 527 respondents in
Obviously, the courts handle more criminal cases Taipei city are doubtful about the fairness of the
than the prosecutors as well as the police officers. judges. The widely spread cynicism among the
In addition to criminal caseload, the district court public concerning the fairness in the judicial sys-
judges have other duties, such as providing signa- tem has to do with the abuses of the power by the
ture for married couples having the wedding cer- judges. Theoretically, the judges after careful
emony in the court, handling of bankruptcy cases, review of the evidence would make their own
and any law suits against the government for decisions. However, this might easily create a
compensations from the victims of the state. problem if a judge takes a bribe and changes the
These heavy loads have created problems in the decision, from guilty to non-guilty, or from a
operations of the court, the slowdown of the jus- prison term of 10 years to 1 year. The unlawful
tice system and the quality of judicial decisions. use of the discretionary power by the judges has
The office of the Judicial Yuan (2011), the created a feeling of distrust by the public con-
administrative body of the judicial system, con- cerning the integrity of the judges. The judges’
ducted a survey on consistency of the district illegal conduct became a reality when in 2010 the
courts judges and the high courts judges and con- prosecutor’s office placed a bribery charge against
cluded that the consistency rate for criminal cases thirteen judges.
was 61.9% in 1996 and 57.8% in 2006. The sta- There have been voices calling for judicial
tistical figure improved in 2008 with a rate of reform to help regain trust from the public.
69.91%. This year, the rate is 71.01% which is Among the suggestions, people are being encour-
the highest rate of consistency yet achieved. The aged to call the prosecutor’s office if they find
consistency rate is now used by the Judicial Yuan wrongdoing in relation to judges as well as pros-
as a measure of the quality of judicial discretion. ecutors. People are also encouraged to appear in
It shows that the quality of the judicial discretion court so that this possibly will have an impact on
is improving. Yet, it also indicates that there are judges. The reforms also ask for legislation on
still a significant number of inconsistent deci- judges’ performance, including professional
sions made by different level of courts. The office evaluation among the judges. Lastly, reforms
of the Judicial Yuan also indicated that the incon- suggest adoption of the jury system in Taiwan.
sistent rate is much higher in the civil court cases. There was a significant reform recently when the
Furthermore, the senior judges often made deci- Taiwanese Government passed the “Judges Law”
sions which are contrary with decisions made by on June 14, 2011. The law requires establishment
306 C. Hou
of the personal review board to process all the protest against the death penalty saying that it is
recruiting and promotion of the judges. The law inhumane and could lead to wrongful execution
also requires all judges to be evaluated every of the innocent. They also argue that unfair trials
3 years. This will need time and work before one are very common in the criminal justice system.
can examine the effects, but it should help to min- In fact, in 1997, a young soldier, at the age of 21,
imize the abuse of power by the judges. was executed for committing forcible rape. On
12th of September 1996, a 5-year-old girl was
found dead in a military compound. The young
19.6 Death Penalty in Taiwan soldier confessed through torture. He later denied
his crime and said that he was tortured and forced
The latest execution was in March 2011. Five to admit his offense. The military court did not
criminals were executed. Previously, in 2010, accept the argument and executed the soldier
four death penalty convicts were executed and in immediately. Later, no DNA evidence of the
the period 2006–2009, for 4 years Taiwan did not young man was found on the toilet papers which
have any execution. Until the end of November were used as the major evidence of the offense. In
2011, there are a total of 53 persons on the death fact, it was later found that another soldier, a
row. pedophile, had raped and killed the girl. The
In Taiwan, the minister of justice is responsi- fingerprint matched with the evidence left at the
ble for the execution. It requires the Minster to scene. The use of death penalty can be dangerous
sign the document for the execution to be han- and unfair. This is the reason that people at the
dled. As long as the minister refuses to sign, there Taiwan Alliance to End the Death Penalty are
will be no execution. However, if the minister calling for a stop to the executions.
does so, he or she will face serious protests from Although there is a social movement calling
the public. One Minister, Miss Wang Ching-feng for the abolition of the death penalty, public opin-
(王清峰), stepped down due to her refusal to ion continues to support capital punishment. In
carry out an execution in 2010. A tremendous 2010, a domestic newspaper conducted a poll
number of complaints arose and forced the min- that showed that 74% of the respondents were
ister to resign. against the abolishment of the death penalty
In Taiwan, the Prosecutor General is the only (United Daily News 2010). The poll showed only
authority having the power to delay the execu- 12% of respondents supporting the abolishment
tion. The Prosecutor General has the right to of death penalty. Public opinion continues to lead
exercise the right of special appeal after all the discussions about the current policy of the death
courts have finalized their independent judg- penalty, and it is very unlikely that the death pen-
ments. The President of Taiwan does not have the alty will be taken away in Taiwan soon. However,
right to exercise this special power, neither does the author suggests that judicial decision of a
the Minister of Justice. The exercise of this spe- death sentence needs stricter regulation. For
cial power would request the highest court for example, it must be a unified opinion in the court
another trial. If the special appeal is raised, the if a death penalty is to be used for a convicted
execution has to be temporarily halted since the criminal but an oral or a written statement cannot
process of justice is not finished. The constitution be used as the only evidence of crime in death
in Taiwan does not set a limit on the use of the penalty cases.
right of special appeal. It can be any number of The right for a counsel is a constitutional right
times as long as the Prosecutor General asks for for a criminal suspect and can be found in the
another trial. criminal justice system in Taiwan. However, it is
The death penalty is a highly disputed issue in not a right guaranteed for everyone. In Taiwan, a
Taiwan. There is a social movement group, the counsel can be appointed to assist you only if
Taiwan Alliance to End the Death Penalty, call- your cases are processed at the court. There is no
ing for the abolition of capital punishment. They lawyer to help you when police arrest a suspect.
19 An Overview of the Criminal Justice System in Taiwan 307
There is also no lawyer to accompany you before Secondly, the due process right of double
the prosecutors. Yet there are two conditions to jeopardy is not practiced in Taiwan. According to
be met so that a lawyer can be appointed to assist the 5th amendment of the US constitution, no
you. First, it has to be a serious offense, punish- person shall be subject for the same offense to be
able for more than three years imprisonment and, twice put in jeopardy of life or limb. If no verdict
second, it has to be a condition where the accused is reached and release is decided upon the state
does not have the ability to describe the details of cannot appeal in the same offense. This is to for-
the offense. The appointed counsels are govern- bid a defendant from being brought to trial all
mental employees and their incomes are similar over again and thus, remained to be uncertain
to judges. There are a total of 51 public defense with the justice system. Currently, in Taiwan, the
lawyers in Taiwan. double jeopardy rule cannot be invoked. The
On the other hand, there are other alternatives local court makes the judgment of not guilty but
through which members of the public can find this is not the final say within the criminal justice
legal assistance. You can request for legal assis- system. The prosecutors can still litigate your
tance from a nonprofit organization, the Legal case to the upper court for a trial. The exercise of
Aid Foundation. The organization will send a the right of appeal is to assure that justice can be
lawyer to protect your rights in the justice sys- fairly handled. However, this creates an uncer-
tem. The requirement for granting a lawyer is that tainty for the defendant. As previously discussed,
you are poor and you cannot afford to hire a law- there are about 30% of the cases inconsistently
yer. In 2009, there were a total of 83,373 applica- ruled by different judges and naturally the deci-
tions and 32% of them, 27,071, were granted sion of the criminal justice system could be very
legal services (Legal Aid Foundation 2010). different if a retrial is appealed.
The following are two legal rights shared by
citizens in the United States which are not the
case in Taiwan. From a comparative criminology 19.7 Conclusion
perspective, it is worthy of discussion since it
could reflect how the culture may affect the oper- This paper addresses three major components of
ation of the justice system. Firstly, it is the right the criminal justice in Taiwan, the police, prose-
of trial by the general public, the jury. The sixth cutor, and the court. We examine the organiza-
amendment of the US constitution guarantees the tions and their functions. We also describe how
right of trial by jury. Regardless if it is a serious they actually process the cases brought to the sys-
or a minor offense, one has the right to a jury tem. The system is a formal social control mech-
trial. In the United States more than half of the anism and it exercises the work of the authorities
trials are made by jury trial, while 44% of the tri- to bring these violators of the law to rightful pun-
als are made by judges. However, due to the dif- ishment. It functions this way to maintain social
ference in the legal system, there is no jury trial order within the community in order to achieve a
in Taiwan. Judges take the responsibilities of sustainable environment for all the people.
making the decisions in the court. The judge- Moreover, this system is also often used by the
based legal system is also integrated with the general public to protect their personal rights,
imperial examination (科舉), where the elites or especially when they encounter disputes or
public bureaucrats are selected in Chinese soci- conflicts with others.
ety. And, the road to a judge is an uneasy one. There is another component in the criminal
You have to take a series of examinations, and justice system that was not discussed in this chap-
you have to surpass many competitors.5 ter, the correctional institutions. In Taiwan, there
are 24 prisons, 12 detention centers, four drug
abuser treatment centers, three occupational
5
In 2011, 7,981 people took the exam to compete for 70 training agencies, two juvenile reform centers,
judges positions. and two juvenile correctional schools. There are
308 C. Hou
a total of about 65,000 people in correctional The purpose of criminal justice is to bring law
facilities. If we translate this number into the violators into the system for justice to be dis-
International Standard of inmate’s population, pensed. However, there is a problem when this
we obtain 280 per 100,000 people, ranking at the system does not operate according to its purpose.
25th of about 160 countries (NationMaster.com If this happens, the system might not be able to
2012). Without doubt, the prison body is a major meet the needs and expectations for people who
component in the justice system. are searching for justice. Unfortunately, very
From the above discussion, we understand that often we witness the system serves the interests
the three components of the justice operate inde- of a certain segment of the people, particularly
pendently and they exercise their individual pow- those who are powerful or those who are rich.
ers given to them by law. They have their own Here, we have to admit that the justice system
roles and responsibilities and they are connected to operates with its limitations.
each other in the system. The police act as gate- Finally, as a sociologist, I understand that every
keepers, determining the intake stage and they for- society finds its own way of providing formal jus-
ward the arrested suspects to the prosecutor office. tice and this lays a ground for the particular opera-
The prosecutors play the key role of crime investi- tions of the justice system. Indeed, the functional
gations and move the cases to the judges, if they operations of the criminal justice system need a
find any violation of the criminal code. The judges cultural basis. Therefore, the criminal justice sys-
then make the final disposition and change the sta- tem in Taiwan operates with its own characteristic
tus for an accused from a suspect to a criminal. style, underpinned by cultural support. The author
The criminal justice system is designed for all would argue that traditional Chinese officialdom,
the members of a society to have their rights to centralization, and big state, rather than the indi-
pursue justice. In the case of Taiwan, we found vidual, underpin the operations of the criminal
that more and more people are willing to bring justice system in Taiwan, with its judge-centered
their cases to the system, revealing the increasing and statute-based approach. It is suggested that
level of awareness of legal rights among the criminologists study these cultural underpinnings
Taiwanese. It also means that more and more to better understand criminal justice both in
Taiwanese are searching for their own justice Taiwan and elsewhere.
from the system, rather than through personal
means.
Furthermore, restorative justice, popularized References
by Australian criminologist John Braithwaite
(1989), is now a formal policy in Taiwan. In Braithwaite, J. (1989). Crime, shame and reintegration.
Cambridge: Cambridge University Press.
2009, the Ministry of Justice announced this pol-
Federal Bureau of Investigation. (2010). Uniform crime
icy and encouraged restorative programs to reports, 2010. www.fbi.gov/about-us/cjis/ucr/ucr.
develop in the criminal justice system. Particularly, Jou, S., Sun, I., & Hou, C. (2011). Taiwanese perceptions
it encourages a dialogue between the victims and of police image and satisfaction with law and order.
Taipei: Ministry of Interior.
the offenders so that normal relationships can be
Judicial Yuan. (2011). Policy prospective of 2011. www.
restored. The court, the prosecutor offices, and judicial.gov.tw.
the prison are allowed to organize a meeting for Legal Aid Foundation. (2010). Annual report, 2009.
the victims and the offender, along with the par- Taipei: Legal Aid Foundation.
National Police Agency. (2008). Police annual report of
ticipation of a mediator. The majority of pro-
2007. Taipei: Ministry of Interior.
grams involve minor offenses, such as family National Police Agency. (2011). Police statistics of 2010.
violence, theft, and traffic incidents. Restoration Taipei: Ministry of Interior.
programs are legally part of the justice system in NationMaster.com. (2012). “Prisoners per capita,” crime
statistics by country. www.nationmaster.com.
Taiwan now and we expect that the Justice office
United Daily News. (2010, March 11). Poll: 74% against
will implement and develop restorative justice the abolishment of death penalties.
practices to enhance the justice system. Wu, Y.-S. (2007). Service. http://yes-wu.idv.tw/index.a.
Contemporary Crime
and Punishment in Thailand 20
Lesley D. Junlakan, Yossawan Boriboonthana,
and Assanee Sangkhanate
661,387 657,564
700,000
600,000
487,535
473,642
500,000
400,000
446,392
300,000
200,000
100,000
0
2006 2007 2008 2009 2010
Fig. 20.1 Number of crimes reported to the police, 2006–2010. Source: Office of Justice Affairs (2011)
impact on the validity and reliability of this paper, Table 20.1 Violent crimes reported to the police in 2010
a triangulation approach was used during the Offense Number of reported cases
analysis in order to maintain a balance between Murder 3,658
data from different sources: namely, police Attempted murder 4,976
records, prosecutors’ caseloads, and the judicia- Manslaughter 265
ry’s statistics. Assault 16,805
Although Thailand does not have a “uniform Rape 4,468
crime report”1 as such issued by law enforcement Robbery 1,691
agencies, the statistics presented by the Royal Source: Office of Justice Affairs (2011)
Thai Police can provide general data on crimes
reported to the authority. Generally speaking,
since 2006 the number of crimes reported to the latest figures show another slight decline to
police has gradually climbed (Fig. 20.1). In detail, 657,584 in 2010. Thus, the annual average
473,672 cases were received by the police in number of crime reports over this 5-year period
2006, with the number slightly decreasing to is 545,304. It is worth noting that these statistics
446,392 in 2007 before steadily rising to 487,535 do not include cases which victims decided not to
and 661,387 in 2008 and 2009, respectively. The report to police. (This issue is discussed further
authors believe that the pronounced increase below.)
between 2008 and 2009 stems from the reintro- The most commonly reported violent crime is
duction of the “get tough” on drugs policy, initi- assault, followed by attempted murder and rape
ated originally in 2002 (see also below). The (Table 20.1). A fairly recent definition change
in violent crime involves rape: in 2007, the Thai
Criminal Code was amended to expand the
definition to cover all types of rape, including
1
The Uniform Crime Report (UCR) has been under the marital rape; rape by/of either sex; and all types
supervision of the Federal Bureau of Investigation since
1930. The report aims to produce reliable and uniform
of sexual penetration.
crime statistics from law enforcement agencies across the In addition, Fig. 20.2 indicates the top five
USA. See http://www.fbi.gov/about-us/cjis/ucr/ucr. major offenses resulting in arrests between
20 Contemporary Crime and Punishment in Thailand 311
270,000
252,183
240,000
221,270
192,762
210,000
180,000
129,521
150,000
120,000 110,904
Fig. 20.2 Crimes reported to the police and resulting in arrests, 2006–2010. Source: Office of Justice Affairs (2011)
2006 and 2010. The numbers show that arrests also significant factors which led to this sharp
on drug-related offenses rose sharply over the rise.2 Evidence shows that considerable resources
period while the numbers of other orthodox have been allocated to ensure the success of such
offenses, except property crime, decreased. policies (Chokprajakchat et al. 2010). Relevant
Arrests in property crimes slightly increased in law enforcement agencies, in particular the Royal
2010. This was consistent with the recent victim Thai Police and the Office of the Narcotics
survey which revealed that the majority of the Control Board, have been urged to play a more
respondents were victims of property crime (see proactive role in combating the supply of drugs
the discussion on “dark figure” below). When whilst simultaneously reducing the demand. The
specifically looking at the 2010 statistics, the present government of Yingluck Shinawatra has
number of drug arrests was as high as 252,183 even made the drug problem a “national agenda,”
cases, increasing from 2006 by almost 130%.
However, it would be wrong to assume that
the increase in arrests on drug-related offenses 2
The Nacotic Addict Rehabilitation Act in a way “decrim-
was solely due to an increase in the abuse of tra- inalized” the act of drug abuses and treated drug users as
ditional drugs (viz. heroin and cocaine): the “patients” who needed treatment rather than “criminals”
who deserved punishment. Therefore, the rise in drug
criminalization of new substances, especially cases presented here was mostly related to the production,
methamphetamine, together with recent govern- distribution, export, and import of the illegal drugs or
ments’ strict policies on drug suppression are substances.
312 L.D. Junlakan et al.
classifying it as one of the “Urgent Policies to be to Buddhism, there are six evil consequences for
Implemented in the First Year.”3 Evidently, there- those who indulge in gambling. All forms of
fore, a crime control approach prevails when it gambling, therefore, are prohibited not only on
comes to dealing with drugs in Thailand. religious and moral grounds but also under the
Gambling4 and prostitution,5 the second and nation’s legislation and criminal policy. In recent
third most common crimes resulting in arrests, years there have been attempts to decriminalize
respectively, should also be highlighted here. gambling on the basis of enhancing the national
Although many countries have already decrimi- revenue through the operation of casinos.
nalized gambling and prostitution, Thailand However, advocates for this still have not suc-
continues to regard them as crimes in need of ceeded in convincing the policy makers of the
punishment, possibly due to the fact that Thailand desirability of doing so, despite the fact that most
is a predominantly Buddhist country.6 According of Thailand’s neighbors, including Cambodia,
now benefit financially from casinos.
A similar approach has been adopted to the
3
criminalization of prostitution. Although recog-
According to the Policy Statement of the Council of
Ministers delivered by Prime Minister Yingluck nized in theory as a victimless crime, prostitution
Shinawatra to the National Assembly, 23 August 2011: can lead to both the violation and exploitation of
“1. Urgent Policies to be Implemented in the First Year. the rights of those forced into the sex industry.
1.2 Prevention of and define solutions to drug problems as Again, Buddhism condemns prostitution, believ-
a “national agenda” by adhering to the rule of law to crack
down on and penalize producers, dealers, influential per- ing that it potentially provokes infidelity which
sons and wrong doers by strictly enforcing laws; adhere to runs counter to religious doctrine. Therefore, as a
the principle that a drug addict is a patient who shall result of the strict policy on this agenda (Samran
receive treatment to enable him/her to return to be a pro- 2010) together with pressure from the public and
ductive member of society; have a systematic mechanism
to monitor and provide assistance; seriously expedite the both domestic and international media, the num-
prevention of drug problems by seeking proactive coop- ber of arrests in prostitution cases has remained
eration with foreign countries in controlling and seizing in the top five since 2006.
narcotic drugs, chemicals and materials used in the pro- The process for the passage of these and other
duction of narcotic drugs smuggled into the country in an
integrated and effective manner; and, prevent vulnerable cases through the Thai criminal justice system is
groups and the general public from getting involved with relatively similar to that in other jurisdictions.
narcotic drugs by harnessing all sectors of society to fight That is, after the inquiry process by the police
against narcotic drugs.” See The Secretariat of the Cabinet. and the amassing of evidence, the case proceeds
(2011). Government’s Policy. http://www.cabinet.thaigov.
go.th/eng/bb_main31.htm. to the Office of the Attorney General (OAG). In
4
The principle law against gambling in Thailand is Gambling 2010, 3,143,686 cases were handled by the
Act 1935. It, however, does not provide the exact definition OAG.7 Cases which, in the opinion of the public
of “gambling” but rather specifies the activities which can prosecutor, are supported by sufficient evidence
lead to “gambling,” i.e., lottery, Bingo, and billiard. It should
and are capable of being proved beyond reason-
be noted that the activities themselves are not “illegal” but
the “intention” of the parties involved can be deemed as ille- able doubt will be indicted in the Court of First
gal. Basically, the law prohibits the act of betting or wager- Instance. Table 20.2 demonstrates that the five
ing for money on such activities. most common types of cases prosecuted by the
5
According to the Prevention and Suppression of OAG very largely reflect the five most common
Prostitution Act 1996, “prostitution” is defined as “sexual
causes of arrest as presented in Fig. 20.1, the
intercourse, or any other act, or the commission of any
other act in order to gratify the sexual desire of another main difference between the two statistics being
person in a promiscuous manner in return for money or that prostitution, which ranks 3rd in police
any other benefit, irrespective of whether the person who
accepts the act and the person who commits the act are of
the same sex or not.”
7
6
A census in 2005 (http://www.onab.go.th) revealed that This figure includes both new cases and pending cases
there were 46,902,100 Buddhists in Thailand (or approxi- carried over from previous years. See http://www.stat.ago.
mately 73% of the total population—the authors). go.th/stat/53/p-cri-.htm for further details.
20 Contemporary Crime and Punishment in Thailand 313
Table 20.2 Number of cases prosecuted by the OAG in 2010, ranked in descending
order
Offense Number of cases in 2010
Drugs 134,469
Gambling 64,762
Immigrationa 31,926
Theft 29,805
Weapon 16,223
Source: Office of the Attorney General (2012). http://www.stat.ago.go.th/stat/53/
cri%2011.htm
a
These were offenses against Immigration Act, 1979 and the majority involved illegal
entrance to the country and the use of false documents. Section 58 of the Act indicates
that “any alien who has no lawful document for entering the Kingdom under Section
12 (1); or has no Residence Certificate under this Act; and also has no identification in
accordance with the Law on Alien registration, is considered to have entered into the
Kingdom in violation to this Act”
records, is replaced by immigration cases in the Table 20.3 Number of cases admitted to the Court of
OAG’s statistics. It is a moot point as to where First Instance in 2010, ranked in descending order
these prostitution cases have “disappeared” and Offense Number of cases in 2010
available statistics have not enabled the authors Drugs 160,478
to draw a definitive conclusion. However, opting Traffic 106,679
for an alternative source of data has helped to Gambling 63,228
identify a possible explanation: the key legisla- Immigration 34,231
tion concerning prostitution. Although efforts Theft 31,739
have been made by the authorities to effectively Source: Office of the Judiciary (2012a)
deal with the issue of human trafficking in
Thailand, the specific laws against prostitution,
one of the core “businesses” of human trafficking, cases admitted to the Court of First Instance
and their enforcement are ineffective (Samran (Office of the Judiciary 2012). Table 20.3 demon-
2010). For example, according to the Prevention strates that the five most common offenses in that
and Suppression of Prostitution Act 1996 year were, in descending order, as follows: drug-
(Articles 5–7), the commission of many of the related offenses (160,478 cases); traffic offenses
prohibited acts can be settled out of court by the (106,679 cases); gambling (63,228 cases); viola-
payment of a fine. The law also provides room tions of immigration laws (34,231 cases); and
for police discretion, e.g., in determining the theft (31,739 cases) (Office of the Judiciary
acts of “communication,” “self-introduction,” 2012a, b). These statistics confirm that drug cases
and “invitation,” between the prostitutes and have dominated the workload of key agencies in
their customers. This, therefore, could result the criminal justice system in recent years.
in many prostitution cases being dropped by Gambling and theft remain in the top five, while
the police when offenders pay the fine, with the the number of traffic and immigration cases sur-
result that prostitution does not figure among passed those involving prostitution and weapons
the five most common types of cases in the in the Court of First Instance (some prostitution
OAG’s statistics. and weapon cases were minor offenses and thus
Lastly, an examination of the judiciary’s sta- not pursued in Court—the authors). In addition,
tistics reveals that in 2010 there were 544,258 in 2010 the three most frequent sentences imposed
314 L.D. Junlakan et al.
300,000
266,008
251,160
250,000
200,000
150,000
100,000 79,125
50,000
1,863 17,797
392 543
0 Fine
Others
Suspension
punishment
Confinement
Imprisonment
Forfieture of
Capital
property
Fig. 20.3 Types of sentences handed down by the Court of First Instance, 2010.Chart adapted from the original in
Office of the Judiciary 2012, p. 31. Source: Office of the Judiciary (2012b)
on convicted offenders by the Court of First to a concern about the ‘dark figure’ of crime—
Instance were, in descending order, suspension of that is, about occurrences that by some criteria
punishment, fine, and imprisonment (Fig. 20.3). are called crime yet that are not registered in the
To sum up, according to the data presented statistics of whatever agency was the source of
above, drug-related offenses represent a major the data being used” (p. 1) and that “in exploring
crime problem in Thailand, dominating the the dark figure of crime, the primary question is
workloads of the police, prosecutors, and the not how much of it becomes revealed but rather
judiciary. However, as has been suggested by what will be the selective properties of any par-
earlier scholars (Biderman and Reiss 1967; ticular innovation for its illumination” (p. 1).
Pepper and Petrie 2003; Pepper et al. 2009; These notions date back 35 years, yet the only
Skogan 1975), measuring crime is not an easy “innovation” with which most jurisdictions are
task and relying solely on official data can result familiar is the crime victim survey as a supple-
in problems of validity and reliability. Skogan ment to the official data. The most recent attempts
(1975) states that a civilian’s decision to report to measure crime are the development of Crime
an incident to the police is “probably the most Severity Index and Uniform Crime Reporting
important factor shaping official statistics on Survey in Canada. However, these tools are still
crime” (p. 20) whilst the police’s discretion to based on the combination of official crime sur-
record or write a formal report also affects the veys and victim reports.
official data (p.22). What is left unreported is In Thailand, as mentioned above, a systematic
referred to in criminology as the “dark figure.” approach has not yet been adopted to the man-
According to Bidderman and Reiss, Jr. (1967), agement of crime statistics, unlike in developed
“the history of criminal statistics bears testimony countries. Having said that, an attempt to identify
to a search for a measure of ‘criminality’ present unreported crimes was made by the Office of
among a population, a search that led increasingly Justice Affairs, Ministry of Justice, in 2008, when
20 Contemporary Crime and Punishment in Thailand 315
a ground-breaking crime victim survey was authorities. Finally, but not the least, a significant
carried out to examine crimes occurring from 1 issue to emerge from the data is that there are as
January to 31 December 2007 (Office of Justice many hidden, unreported crimes in Thailand as
Affairs 2009).8 In total, approximately 18.2 mil- reported ones. However, to date no visible action
lion households consisting of members 15 years has been taken or new policies introduced by the
old or above were selected as the sample, repre- authorities to effectively respond to this issue.
senting a total of 51,070,971 interviewees. (To
put this in context, the total population of Thailand
at the end of the survey year was estimated to be 20.3 Key Punitive Measures
66 million.) Of the total sample, 288,683 persons
(0.6%) reported that they had been victims of This section discusses criminal policy through
crime during the period involved. Interestingly, the examination of the criminal justice process
the overwhelming majority of the victims (94.0%) and official facts and figures in recent years. In
were victims of property crimes (most commonly Thailand, no official policy as such is made pub-
theft, breaking and entering, vehicle theft, and lic. Having said that, the government’s discourses,
destruction of property in that order). As for the together with statistics from relevant criminal
characteristics of the victims themselves, the justice system agencies, can be used as substi-
report demonstrated that the majority were male tutes when exploring the country’s approach to
(51.9%), married (74.8%), with a mean age of 43 dealing with crimes and offenders.
and low education (primary level) (51.9%). Half
of the crimes were committed by a single offender
(51.0%), with offenders being generally unknown 20.3.1 The Justice Process
to their victims. Of all these cases, the vast major-
ity of offenders were male (83.2%), assessed to In order to have a clearer picture of the treatment
be aged from 18 to 25 (30.7%), and acting inde- of offenders, the Thai justice process should first
pendently. The most common response to the be briefly introduced. The key legislation is the
question concerning when the crime occurred Criminal Procedure Code, which guarantees the
was between 18.01 h and 06.00 h (36.5%) whilst right of the accused to counsel during the pretrial
the crime location was most commonly the vic- phase, preliminary hearing, and trial itself.
tim’s own residence. Pursuant to the Constitution, the defendant is also
One of the most interesting findings of this guaranteed the right to a public trial and to be
pilot project was that 65.2% of actual crimes, in present at that trial. As in other jurisdictions, the
particular sexual and property crimes, were not law adopts the principle of presumption of inno-
reported to the authorities due to either the vic- cence, whereby the defendant must not be treated
tim’s assumption that the police could not do as a criminal until found guilty by the Court. It is
anything to help (62.0%) and/or the victim’s the burden of the public prosecutor to prove
inability to provide any details of the offender beyond a reasonable doubt that the defendant
(74.5%). The project not only uncovered unre- actually committed the crime before the Court
ported crimes but also pinpointed the public’s can penalize him or her. However, unlike some
low level of confidence in the Thai criminal jus- countries there is no plea bargaining in Thailand,
tice system, a key issue which needs to be taken although research is currently underway as to the
into account by policy-makers and relevant feasibility of introducing this. For offenses carry-
ing imprisonment terms of five years or more,
even if the defendant pleads guilty the Criminal
8
This victim survey represented the state’s effort to incor- Procedure Code requires that there should be
porate missing crimes which were not officially reported to
the authority. This operation was not part of the International
proof beyond reasonable doubt that the defendant
Crime Victim Survey (ICVS) format. More detail of the actually committed the offense. However, when
survey can be found at http://www.thaicvs.org/. the defendant pleads not guilty, or when the case
316 L.D. Junlakan et al.
requires further hearings, the Court will set a date against such a judgement, as such sentences are
for the trial. Normally, the trial proceeds with the not final unless confirmed by the Court of Appeal.
examination and cross-examination of witnesses, Execution of sentence may be suspended if the
first by the prosecutor and then by the defense defendants are insane; if it is feared that their life
lawyer. will be endangered by imprisonment; if they are
The Thai judiciary plays a passive, neutral pregnant; or if less than three years have elapsed
role during the trial, with the Court basing its ver- since they gave birth. In cases where the defen-
dict on the facts that emerge during the examina- dant has been sentenced to capital punishment,
tion and cross-examination processes carried out this cannot be executed until the provisions of
by the public prosecutor and the defense lawyer. the Criminal Procedure Code governing pardon
Sentencing is the culmination of the trial process, have been complied with. If a person sentenced
with the Court delivering its verdict together with to capital punishment becomes insane before
a proportionate sentence for a defendant who is being executed, the execution is suspended pend-
found guilty. To arrive at this and to ensure uni- ing his or her recovery. Furthermore, the death
formity in sentencing, the Court uses sentencing sentence is not applicable to a person under eigh-
guidelines, although these are neither legally teen and such a sentence on a pregnant woman
binding nor do they officially limit the discretion will be commuted to life imprisonment after
of the judge. being suspended for the first three years after the
The Criminal Code and other criminal statutes child is born. In fact, very few executions take
specify the range of minimum and maximum place in Thailand, the most recent having been
penalties for a particular offense. The Criminal carried out in 2009 when two convicted drug
Code specifies five types of penalty, viz., capital offenders and a murderer were executed. It should
punishment; imprisonment; confinement; fine; also be mentioned in passing that the execution
and forfeiture of property to the state. Section 39 method was “modernized” in 2003 when legisla-
of the Code also stipulates the following “safety tion was enacted to replace the firing squad by
measures”: protective custody; prohibition on lethal injection.9 As of 20 March 2012, seventy-
entering specified locations; the execution of a one prisoners, all male, were on death row in
bond upon receipt of a security for keeping the Thailand (Department of Corrections 2012,
peace; confinement to an institution for treat- unpublished data).
ment; and prohibition on engaging in specified Under the terms of the Criminal Procedure
occupations. As specified in the Criminal Code, Code, if either party is dissatisfied with the judge-
in cases for which the maximum term of impris- ment of the Court of First Instance, they can
onment is not more than three years and the appeal to the Court of Appeal. Disagreements on
accused has not previously served a prison term, legal issues can, without exception, be sent to the
except for negligence or petty offences, the Court Court of Appeal and then, if necessary, to the
can use its discretion to grant a suspension of the Supreme Court. Factual disputes can also be
sentence and a suspension of the punishment for appealed in both these Courts, subject to restric-
a fixed period of time. If the accused does not tions at both stages. In theory, the appeal has to
commit another offense during this period, they be lodged within thirty days of the issuance of the
will be discharged. Court of First Instance’s verdict or order.
When found guilty of an offense punishable One component which distinguishes the Thai
by imprisonment, the convicted offender is criminal justice system from that of other juris-
detained in a state prison administered by the
Department of Corrections. If the Court of First
9
Instance imposes a sentence of capital punish- The prisoner is injected with three kinds of drugs: sodium
thiopental, a barbiturate which renders the prisoner uncon-
ment or life imprisonment, it must send all files scious; pancuronium bromide, a muscle relaxant which
relating to the judgement to the Court of Appeal paralyzes all muscles and stops breathing; and potassium
for review, even if no appeal has been lodged chloride, to stop the heart and cause cardiac arrest.
20 Contemporary Crime and Punishment in Thailand 317
dictions is the active use of the Royal Pardon. custody those sentenced by the Court. The two key
This can be granted to any eligible individual or thrusts of the correctional service as presented in
group of individuals at the discretion of the mon- the organization’s vision are custody and reha-
arch, as stated in the 2007 Constitution10 and in bilitation. In order to attain the objective of
the Criminal Procedure Code.11 The pardon may secure custody, currently the DOC’s principal
be in the form of an unconditional release, a com- strategy focuses on enhancing prison security for
mutation, or reduction of punishment. A effective management of high-profile prisoners
Collective Royal Pardon is granted on certain by equipping its main facilities with the neces-
auspicious national occasions: in recent years sary custodial technology as well as competent
these have included the so-called Seventh Cycle human resources. As for rehabilitation, the DOC
Birthday Anniversary (i.e., 84th birthday) of His has established a new paradigm of correctional
Majesty the King on 5 December 2011 and the works which emphasizes the importance of reha-
60th Anniversary of His Majesty’s Accession to bilitation during incarceration, with the ultimate
the Throne in 2006. On the other hand, an goal of returning inmates to the community as
Individual Royal Pardon is granted as a matter of good, law-abiding citizens.
routine procedure: any convicted prisoner; a con- Rehabilitation programs for offenders in cor-
cerned person (parent, offspring, or spouse); or rectional facilities can be categorized into 3
diplomatic representative (in the case of foreign groups: basic programs; supporting programs;
prisoners) wishing to petition the monarch for a and reentry programs. The first comprises the
pardon may do so by submitting the petition main activities for inmates, e.g., both mainstream
through official channels, viz., the prison author- and vocational educational training; artistic train-
ity, the Ministry of Justice, and the Office of His ing; and religious and recreational activities, all
Majesty’s Principal Private Secretary, and for for- of which aim to equip offenders with basic com-
eign nationals, the Ministry of Foreign Affairs or petencies in readiness for their return to society.
their country’s diplomatic mission. The second group involves short-term programs
Overall, it is fair to state that Thailand’s crimi- which emphasize knowledge enhancement and
nal justice process is relatively similar to that of skills training, e.g., anger management, absten-
other jurisdictions, especially the British court tion from alcohol and tobacco, and empathy with
system, as most of the key founders of the mod- victims’ feelings. Lastly, the third block recog-
ern Thai justice system were trained in England. nizes the necessity of preparing prisoners for
In fact, many recent developments in the Thai reintegration and therefore focuses on such issues
system continue the shift towards Western meth- as family, employment, social reintegration, and
ods and standards, for example, restorative jus- necessary life skills, with the objective of reduc-
tice; “the re-emergence of feminism” (Newburn ing the risk of reoffending. Simultaneously, this
2003:235); and “the rise of victim support” enhances the general public’s confidence that
(2003:241). The reform of criminal justice is dis- offenders will return to society as law-abiding
cussed later in this chapter. citizens.
Figure 20.4 shows the Thai prison population
over the past twelve years. In 2002 the prison
20.3.2 Imprisonment population reached a historical peak, with
252,879 prisoners incarcerated nationwide. This
Founded in 1915, the Department of Corrections was primarily due to the lead-up to what in 2003
(DOC) plays a significant role in keeping in officially became known as the “War on Drugs”
policy of the then government, with most drug
offenders of whatever nature being indiscrimi-
10
Section 191. nately imprisoned. The subsequent decline
11
Sections 259 to 267 of Division 7: Pardon, Commutation (2004–2007) reflects three factors: the release of
and Reduction of Punishment. prisoners under Royal Pardons; the implementation
318 L.D. Junlakan et al.
300,000
252,879
237,869 227,750
250,000 231,725
207,457 224,864
213,094
204,701
190,028
200,000
167,142 166,903
163,336
152,625
150,000
100,000
50,000
0
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Fig. 20.4 Trends in prison population, 2000–2012 (as of 1 February 2012). Source: Department of Corrections (2012)
120,000
104,722
100,000
Property
80,000 Drugs
Life threatening
60,000 Assaults
Sexual Offenses
40,000 Public safety
29,852
12,319 others
20,000
5,896 7,637 6,280
242
0
Fig. 20.6 Number of convicts in prisons, classified by offense (as of 31 January 2012). Source: Department of
Corrections (2012). Note: “Life Threatening offenses” include murder, attempted murder, manslaughter, and negligence
resulting in the death of others
that the growth in the number of female prisoners icy has led to the imposition of the maximum
is on a par with, or even higher than, their male sentence for those convicted of drug-related
counterparts. In addition, recent international offenses.
data comparing the incarceration rate of 218
countries ranked Thailand at 28th, with an incar-
ceration rate of 328 per 100,000 population12 20.3.3 Probation and Parole
(International Centre for Prison Studies 2012). In
a specifically Asian context, Thailand came sec- In Thailand, probation is the main alternative
ond after Iran. sanction to imprisonment. The probation system
When looking at types of offenses (Fig. 20.6), for adult offenders was introduced into the coun-
the majority of convicts (104,722 or 62.73%) try with the establishment of the Central
were drug offenders, followed by those convicted Probation Office under the Probation Procedure
of property crimes (29,852 or 17.88%) and life- Act 1979. Since then the Thai probation system/
threatening offenses (12,319 or 7.38%). It should agency has gradually expanded and in 1992 the
be noted that currently incarcerated drug offend- office was upgraded and renamed the Department
ers consist mainly of producers and pushers: as a of Probation (DOP).
result of legal reform and diversion programs, The administration of probation work in
most drug users are now diverted to drug reha- Thailand is broadly on a par with other jurisdic-
bilitation centers (see discussion on probation tions. Adult offenders on probation are those
below). In addition, in view of the discussion in who have committed an offense punishable by a
the previous section on both crimes reported to term of imprisonment of not more than 3 years,
the police and the crime victim survey, it is not with the Court either suspending the determina-
surprising that the proportion of drug prisoners tion of punishment or designating the punish-
is much greater than other subgroups. Again, ment but suspending the implementation thereof.
this confirms that the “get tough on drugs” pol- In addition, the Court may order probation
officers to conduct a social investigation for its
consideration on the suspension of a punishment.
Table 20.5, showing presentence investigation
12
Data available at http://www.prisonstudies.org/info/ cases from 2007 to 2010, reflects the small but
worldbrief/wpb_stats.php?area=all&category=wb
poprate. International Centre for Prison Studies noted that notable decrease in this over the past few years.
this figure was “based on an estimated national population In July 2002 a Cabinet resolution conferred on
of 68.4 million at the beginning of March 2011 (from the DOP the responsibility for administering pre-
United Nations figures).” trial, trial, and posttrial probation, thereby initiating
320 L.D. Junlakan et al.
Table 20.5 Presentence investigation cases, 2007–2010 Table 20.7 Successful completion of probation,
2006–2009
Year Presentence investigation cases
2007 47,966 Year Number of cases Percent
2008 46,516 2006 117,567 93.1
2009 44,694 2007 112,237 93.2
2010 44,895 2008 117,287 92.7
Source: Department of Probation (2011) 2009 128,339 91.9
Source: Department of Probation (2011)
Table 20.6 The number of probationers and parolees, Table 20.8 Revocation and reoffending rates of proba-
2003–2010 tion population, 2007–2009
Adult Juvenile Year Revocation rate (%) Reoffending rate (%)
Year probationers Parolees probationers Total 2007 6.8 15.3
2003 64,232 49,086 4,674 117,992 2008 7.2 10.7
2004 70,428 35,095 12,890 118,413 2009 8.1 14.2
2005 81,995 29,459 15,520 126,974 Source: Department of Probation (2011)
2006 86,937 23,547 18,470 128,954
2007 92,279 22,900 21,999 137,178
2008 102,880 19,873 23,278 146,031 newly admitted cases), and again in both 2008
2009 130,048 25,852 22,936 178,836 (30.76%) and 2010 (40.12%), with drug offenses
2010 125,949 22,721 23,733 172,403 in second place in both these years. However,
Source: Department of Probation (2011) drug cases13 topped the chart in 2009 (45.34% of
all cases) and again in 2011 (38.41%).14
Compared with the number of cases success-
a comprehensive mechanism for developing the fully completed each year over the period 2006–
probation system. Thus, by the end of October 2009 (Table 20.7), the rate is satisfactory, with a
2003, the responsibility of the DOP had been range of 91–93%, even though there has been a
modified to cover probation sanctions against the slight year-on-year percentage decline since 2007.
accused and offenders at all stages of adjudica- Over the period 2007–2009, the percentage of
tion, including adult probation, parolees, and probationers who had their probation revoked
juvenile offenders on suspension of sentence or due to a breach of conditions ranged from 6.8%
conditional release from a training center. (2007) to 8.1% (2009) (Table 20.8). Probationers
Table 20.6 represents the probation and parole and parolees who reoffended after completion of
population from 2003 to 2010. Overall statistics their sentence ranged from 10.7% to 15.3% over
show that the probation population has been the same 3-year period.
increasing constantly at an average rate of 5.8% Looking at the criminal justice system agen-
per annum. The number of adult probationers cies’ data in both this section and the previous
doubled from 2003 to 2010, while the number of one, the authors wish to argue that they reflect an
juvenile probationers showed an even more uncoordinated criminal policy driven by the
remarkable increase (fivefold) over the same political agendas of the ruling governments (as
seven-year period, from 4,674 in 2003 to 23,733 also suggested by scholars, e.g., Garland 2001;
in 2010. On the other hand, the parole population Newburn 2003; Simon 1997). An obvious exam-
in 2010, including prisoners released on sentence
remission, decreased about 56% from 2003.
13
When putting types of offense in perspective, Drug cases under probation include “drug possession”
and “drug production” offenses involving limited amounts
most of the caseload in the probation and parole
of less serious types of drug as identified by the Narcotic
system was involved with traffic and drug cases. Addict Rehabilitation Act, e.g., opium and marijuana.
Statistics show that traffic-related offenses were 14
Unpublished data from the Department of Probation,
at the top of the chart in 2007 (34.22% of all 2012.
20 Contemporary Crime and Punishment in Thailand 321
ple is the policy towards drug offenses: it seems In addition, the criminal justice system has
that the government chose to “get tough” on one been criticized on many fronts over the past
specific crime which would attract the attention decade—including miscarriage of justice; rights
of the public and the media (see Newburn 2003, violations of both the accused and victims; abuse
264–267). This has resulted in a case overload of power; delay in the administration of justice;
problem for criminal justice agencies, especially and prison overcrowding (Kittayarak 2001;
the two core agencies—the Department of Thailand Criminal Law Institute 1998;16
Corrections and the Department of Probation— Ua-Amnoey 1999). These issues have been
which are key administrative bodies responsible repeatedly raised by politicians, scholars, human
for implementing the Court’s sentences. right advocates, and other stakeholders whenever
Although attempts have been made to deal flagrant cases of injustice have occurred and have
with drug offences by diverting drug use offences been sensationalized in the media. It has been
from the justice system, drug-related offences are argued that the inefficiency of the criminal justice
still in the majority, consuming vast resources system is partly caused by the lack of clear crimi-
from agencies across the system. Additionally, the nal policy and overemphasis on crime control.
statistics from the DOC suggest that imprisonment However, other scholars regard the root of the
remains the most convenient and safest option to problem as being the “nonsystem” of criminal
punish wrongdoers. The authors wish to empha- justice agencies (Kittayarak 2003).
size that a holistic approach should be adopted During the 1990s, there was status disparity
in dealing with crimes, especially drug crimes. among the core criminal justice agencies. The
Currently, overreliance on imprisonment still Office of the Attorney General17 and the Courts
exists, whilst the employment of alternative sanc- of Justice18 at that time were independent,
tions remains limited. Moreover, the efficiency although as court administration remained one of
of the criminal justice system in dealing with the core responsibilities of the Ministry of Justice,
crimes appears to be suspect. These are some of the ministry was somewhat scathingly referred to
the challenges facing the criminal justice system as the “Ministry of Court.” On the other hand, the
which are discussed in detail in the next section. Royal Thai Police and the Department of
Corrections were under the Ministry of the
Interior and the Department of Probation was
20.4 Criminal Justice Reform under the Ministry of Justice. Thus not only was
the structure of the criminal justice system inap-
When looking at the incarceration rate and pun- propriate and fragmented, but the agencies’ oper-
ishments specified by Thai law, it is undeniable ations were also uncoordinated, focusing
that the Thai criminal justice system relies exces- primarily on their own particular goals, with the
sively on the use of imprisonment, with a higher policy and the objectives of their umbrella orga-
incarceration rate in comparison with that of other nization accorded lower priority.
countries. Sanctions imposed on offenders pri- The inefficiency of the criminal justice system
marily consist of payment of a fine and suspension gradually became the focus of both the public
of sentence/punishment with or without proba- and successive governments. Therefore, when
tion, traditionally the standard noncustodial mea-
sures applied in Thailand. Community service,
which is a popular, mainstream noncustodial mea- 16
Thailand Criminal Law Institute (1998). Seminar Report
sure in many countries, is not widely applied in on Direction of Thai Criminal Justice in the Next Decade.
Thailand and is limited to some specific groups.15 Unpublished manuscript.
17
From 1991 to 2001, the Office of the Attorney General
15
In Thailand, community service is applied to those who was an independent agency under the Prime Minister but
are on probation and consent to do such service; those was transferred to the Ministry of Justice in 2002.
18
who request to do community service in lieu of fine; or The courts were independent but remained administra-
drug users who are under compulsory drug treatment. tively under the Ministry of Justice from 1991 to 2000.
322 L.D. Junlakan et al.
the 1997 Constitution was drafted, the reform of law and human rights, Thai criminal policy now
criminal justice and rights protection were two increasingly stresses the rights of victims, the
core issues to which the drafting committee paid accused, and offenders, especially the vulnerable,
particular attention. As a result, the so-called such as children and women. Acknowledging
People’s Charter contained many Sections losses suffered by both crime victims and accused
focusing on due process and the reform of the persons who themselves become victims of the
criminal justice system. Subsequently, the 2007 miscarriage of justice, Thailand enacted the
Constitution maintained most of the ideology Compensation for Crime Victims and Accused
enshrined in its 1997 counterpart whilst putting Act 2001 to financially compensate them for their
further emphasis on criminal justice agencies’ mental and/or physical suffering. Under this law,
efficiency, including public participation in victims of serious crime, such as rape, murder,
the administration of justice and the establish- and assault, are entitled to receive compensation
ment of independent agencies to provide checks from the State to cover loss of earnings, medical
and balances. expenses, death, and other losses if applicable. In
However, midway between these two the case of accused persons, the compensation
Constitutions, significant criminal justice reform applies to those who have been prosecuted,
took place in 2002 when the government decided confined, and then had the case against them
to reorganize the Ministry of Justice and establish withdrawn due to their innocence, or when the
new departments to improve the system’s Court’s judgment is one of not guilty. The com-
efficiency. The reorganization of the Ministry pensation covers their criminal defense expenses,
was also a response to overall civil service reform loss of liberty during confinement, medical
based on citizen-centered principles and result- expenses, and death.
based implementation. This, along with other To protect the rights of children and juveniles,
factors, led to changes in policies and the reorga- the Criminal Procedure Code and legislation
nization of criminal justice which are discussed relating to juvenile justice have been amended to
later in this section. guarantee the rights protection of juvenile wit-
nesses and offenders. The amendments19 stipulate
that the questioning of a child/juvenile by an
20.4.1 Reform of Criminal Policy inquiry official must be carried out separately
from other offenders; in an appropriate place; and
In recent years—and in particular since the major without discrimination or stigmatization. The
criminal justice reform of 2002 referred to legal adviser of the alleged child/juvenile offender
above—there have been changes and new direc- is required to be continually present at the time of
tions in Thai criminal policy, not so much explic- their being informed of the charge and during
itly stated, but clearly reflected in related their interrogation. Additionally, in the case of an
legislation and policy, including both the Criminal alleged serious offence, the inquiry official must
and Criminal Procedure Codes, the National interrogate the child/juvenile offender in the pres-
Master Plan on Criminal Justice, and government ence of a psychologist or a social worker; a per-
policy as a whole. To illustrate this shift, policy son designated and requested by the child/
and practices as applied over the past few years juvenile; and a public prosecutor.
are outlined below. Likewise, on the issue of women offenders,
Thailand has become a leader in the promotion of
20.4.1.1 Increased Emphasis on the Rights their enhanced treatment and protection of their
of Victims, the Accused, rights. Under the royal patronage and leadership
and Offenders
Due to the 1997 and 2007 Constitutions’ empha-
sis on rights protection and conformity with 19
Sections 133, 134, and 172 of the Criminal Procedure
international standards for promoting the rule of Code as amended in 1999.
20 Contemporary Crime and Punishment in Thailand 323
of HRH Princess Bajrakitiyabha, in 2008 Thailand aims to provide restoration for the victims and
initiated the Enhancing Lives of Female Inmates the community, this approach also benefits
(ELFI) project to promote appropriate treatment offenders by providing an opportunity for them
programs for women prisoners, from their enter- to make reparation and be diverted from the justice
ing the correctional system to the aftercare phase. system. Since its implementation in 2003, 20,000
The recommendations proposed by ELFI became children and juveniles have been diverted by
internationally recognized and supported, lead- non-prosecution orders.
ing to their ultimate adoption by the United Another alternative measure development is
Nations as the United Nations Rules for the the compulsory drug treatment scheme, endorsed
Treatment of Women Prisoners and Non- by the Narcotic Addict Rehabilitation Act 2002.
Custodial Measures for Women Offenders, or This scheme was innovatory in that it made a dis-
“Bangkok Rules,” in December 2010. tinction between drug users and drug producers,
Consequently the United Nations Office on Drugs sellers, and exporters: the users became classified
and Crime (UNODC) was given the task of dis- as “patients” and therefore sent to rehabilitation
seminating the Rules as a supplement to the centers for drug treatment programs, depending
Standard Minimum Rules for the Treatment of on the nature of their case. If the treatment shows
Prisoners and the Tokyo Rules. satisfactory results, they are then diverted from
criminal procedures without a criminal record.
20.4.1.2 Application of a Wider Range Since its implementation in 2003, over 500,000
of Alternative Measures drug users have been diverted from the criminal
The problem of excessively large caseloads, found justice system.
at every stage of the Thai criminal justice system,
especially prison overcrowding, has driven crimi- 20.4.1.3 Promotion of Community
nal justice agencies to apply a range of alternative Participation at Policy
measures to divert cases from the system. This and Practice Levels
policy was in effect initiated by a Cabinet Lastly, the change in criminal policy can be
Resolution of 10 July 2001, providing guidelines observed through new schemes aiming to encour-
on reducing caseload and overcrowding. These age community participation in criminal justice.
include the use of conflict resolution as an alter- In accordance with the National Master Plan for
native measure and sentencing option, as well as Justice Administration 2009–2012, a strategy is
the implementation of compulsory drug treatment in place to promote justice system participation
to divert drug users from the system. by all social sectors, including the community,
The implementation of this policy is also evi- the private sector, local administration, and the
dent through the application of restorative justice media. In fact, this policy had previously been
practices, which are currently implemented at put into practice, with the National Master Plan
both the pretrial and trial stages in both adult and serving to promote its continuation and empha-
juvenile cases. When the amended Juvenile and size its importance. For example, the concept of
Family Court and Procedure Act was promul- voluntary assistance, such as acting as a volun-
gated in 2010, conferencing became extensively teer probation officer, was established in 1986
used with child/juvenile offenders as an alterna- but was subsequently extended to cover other
tive approach to divert cases from the juvenile areas, such as the scheme for volunteering in
justice system and rehabilitate young offenders. rights and liberties protection established in 2005.
In such cases, if the victim(s) and responsible However, the most innovatory project for public
official agree, conferencing takes place and a involvement in the justice system is the
rehabilitation plan, aiming simultaneously to Community Justice Scheme, introduced by the
reform the offender, make restoration to the Department of Probation in 2003, under which
victim(s), and promote public safety, is devised. opportunities are provided for members of the
Although the basic principle of restorative justice community to work in partnership with justice
324 L.D. Junlakan et al.
officials. Volunteers establish centers in their own of these is essential to improving the efficiency of
locality and they are then collaboratively involved the criminal justice system and promoting the
in justice activities, such as crime prevention, coordination of criminal justice administration,
offender rehabilitation, and conflict resolution. each organization is briefly introduced below.
The primary aim of the Community Justice
Scheme is not to lessen the burden of justice 20.4.2.1 Office of Justice Affairs
agencies or help justice officials perform their The Office of Justice Affairs was founded to sup-
duties but to empower the community to make port the new approach to the justice system under
itself strong and just through its own members. the reform policies, with its core functions
After nearly a decade since its inauguration, the including being responsible for the administra-
Community Justice Scheme has proved to be an tive work of the National Commission for Justice
appropriate channel for the Thai criminal justice Administration Development and studying and
system to respond to the needs of the public and analyzing policies, strategic plans, and justice
improve confidence in its services. Indeed, it system management.
could be argued that as Thailand moves towards
becoming a more mature democracy, greater 20.4.2.2 Department of Special
public involvement in the criminal justice system Investigation
is an inevitable step and this is the direction which The Department of Special Investigation was
all justice agencies should follow. established specifically for the surveillance,
deterrence, and effective prevention of increas-
ingly complex crimes perpetrated by organized
20.4.2 Reform of the Organization criminal groups, especially those of a transna-
of Criminal Justice Agencies tional nature, which jeopardize the nation’s econ-
omy, social order, and stability, as well as for the
As has already been mentioned, the 1997 and eradication of illicit groups or activities that
2007 Constitutions, coupled with overall civil endanger international security.
service reform, have had a major influence on
Thai criminal justice reform. Section 230 of the 20.4.2.3 Department of Rights
1997 Constitution paved the way for the estab- and Liberties Protection
lishment of new ministries, sub-ministries, or The mission of the Department of Rights and
expanded departments through the promulgation Liberties Protection is to promote and protect the
of a specific law. Thus in 1998 the Royal Thai people’s rights and liberties as stipulated by law
Police became an independent organization under through the development of the promotion of
the Prime Minister in order to improve its justice and the enhancement of the public’s
efficiency, whilst in 2000 the Courts of Justice awareness of their rights and liberties. In addi-
became fully independent when its administra- tion, it offers protection and primary assistance
tive work, judicial affairs, and legal affairs were to witnesses, victims, and accused persons in
separated from the Ministry of Justice and trans- criminal cases.
ferred to the newly founded Office of the
Judiciary. There was also major reorganization of 20.4.2.4 Central Institute
the Ministry of Justice itself, with the substantial of Forensic Science
changes including the transfer of departments The institute’s main responsibilities are to receive
from other ministries and the establishment of complaints from the public affected by forensic
five new departments.20 Since the establishment science malpractices; to provide forensic science
services, e.g., the identification of missing per-
20
A sixth new department, the Office of the Public Sector
sons and the verification of evidence; to study
Anti-Corruption Commission, was later established in and research forensic science issues with both
2008, in accordance with the 2007 Constitution. governmental and nongovernmental sectors; and
20 Contemporary Crime and Punishment in Thailand 325
to supervise forensic science personnel to ensure or launched in Thailand, it is all too likely that
that they comply with codes of practice, stan- they will not be implemented immediately, either
dards, and ethics. because no one agency assumes the responsibility
for doing so or appropriate resources are not
20.4.2.5 Department of Juvenile provided. Indeed, it would appear that changes
Observation and Protection in criminal justice have been occurring at a rate
The Juvenile Observation and Protection Center which prevents the system from responding in a
was upgraded to the Department of Juvenile timely and appropriate manner. For example, the
Observation and Protection with the expectation Criminal Procedure Code was amended to enable
that it would serve as the core agency for protect- the use of home detention and electronic moni-
ing the rights and welfare of children in the juve- toring in 2007 but neither of these measures have
nile justice system. Its main responsibilities are yet been implemented because, as referred to
to promote the rehabilitation of child and juve- above, it is not clearly specified which agency
nile delinquents; to facilitate restorative justice should be responsible for these innovative
and other alternative measures for diversion; and approaches and no clear budgetary policy was
to provide other assistance services for children provided. This problem of implementation is
by liaising with their families and community likely to continue if there is no single authority
networks. capable of making such decisions for the system
as a whole and which simultaneously has the
power to compel the government to provide
20.5 Challenges and Conclusion sufficient resources.
Recent developments seem to indicate a start
In accordance with the core principles of the in addressing the above concerns but much
Constitution—including the protection of the remains to be done. In order to provide an effec-
people’s rights and liberty, independence, and tive response to these challenges as well as to
good governance—Thailand’s criminal justice strengthen the unity, effectiveness, and efficiency
system is continually being reformed. This reform of the justice system, the National Commission
has clearly wrought changes in criminal justice for Justice Administration Development was
administration and processes, which require the established by the National Justice Administration
understanding and cooperation of those both Development Act 2006. The commission, chaired
inside and outside the system: criminal justice by the Prime Minister or the designated Deputy
personnel need to understand the revised con- Prime Minister, consists of heads of relevant
cepts and implement them accurately, whilst pub- organizations including the judiciary, the Ministry
lic support for the new policies is also needed. of Justice, and the Ministry of the Interior.
Since Thai society is accustomed to the conven- However, to date this commission has not made
tional criminal justice system based on the pun- significant progress, due in part, it can be specu-
ishment of offenders, the new policy and schemes lated, to the political upheavals and changes of
focusing on rights protection, public involvement, the past six years which have necessarily resulted
and alternative approaches may not be readily in changes of the chairperson.
understood (Ua-Amnoey 2002). To gain support Evidently, there still remains a long way to go
and implement the reforms smoothly, communi- in the development of the Thai criminal justice
cation with and education of the public as well as system, with more challenges to be faced.
justice personnel are of critical importance. Political uncertainty and instability remain preva-
Another concern regarding the changes in lent, with the associated policy changes in agen-
Thai criminal justice is the implementation of cies. Although some criminal justice organizations
alternative approaches, especially alternatives to are now independent, successive governments
imprisonment. Even when new laws or approaches still have the potential to generate policy incon-
relating to alternative measures are promulgated sistencies and inefficient resource allocation.
326 L.D. Junlakan et al.
However, international trends and organizations Institute For the Prevention of Crime and the Treatment
are putting pressure on Thailand to adopt stan- of Offenders, 60, 107–117.
Newburn, T. (2003). Crime and criminal justice policy
dards and safeguards concerning human rights (2nd ed., p. 320). London: Longman.
and good governance, and this can only have a Office of Justice Affairs. (2009). Victim Survey Report
positive influence on the Thai criminal justice 2007. Retrieved from http://permsec.com/EN/images/
system, leading eventually to the development of Public_Crime_Report.pdf.
Office of the Judiciary. (2012a). Annual Judicial Statistics.
more effective and fairer processes. Retrieved from http://www.coj.go.th/oppb/human/
AnnualJudicialStatisticsTH2552.pdf.
Office of the Judiciary. (2012b). Annual Judicial Statistics
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Part III
Victims and Offenders
Violence Against Women
in Singapore: Initial Data from 21
the International Violence Against
Women Survey
Wing-Cheong Chan
committed (Singapore Police Force n.d.).2 Other It is in the light of this background that the
data available in Singapore focus on aspects such present study was conducted using the
as women who report spousal violence to the International Violence Against Women Survey
police (Ministry of Community Development, (“IVAWS”).5 It aimed to uncover the preva-
Youth and Sports, n.d.(a)), women who seek med- lence and types of violence against women in
ical assistance in public hospitals for domestic Singapore through a random sampling of
violence (Ministry of Community Development, Singapore households. Socio-demographic
Youth and Sports, n.d.(b)),3 and applications to details of those women who experienced vio-
the Family Court for protection orders against lence in the last 12 months, the severity and
family violence (Ministry of Community perception of the incident, and contact with the
Development, Youth and Sports 2009).4 These do police will also be discussed here. Through
not give a complete picture of all women who the adoption of the IVAWS, it is also hoped that
have experienced violence from men since they the Singapore data will contribute to future cross-
require the victims to come forward to seek ser- cultural analyses of violence against women in
vices from the police, public hospital, or Family other parts of the world and promote policy eval-
Court, and only count them if the violence is uation of national and international efforts to
experienced in a certain way (namely, “spousal” curb violence against women.
violence, “family violence”, or where the injuries
are severe enough to warrant medical assistance).
Several studies have appeared over the years 21.2 Methodology
in Singapore which attempt to give a picture of
the socio-demographic profile of women victims The Nielsen Company was engaged to carry out
of violence (Seow et al. 1995; Subordinate Courts the IVAWS in Singapore. The survey was trans-
of Singapore 1998; Lim 2002; Foo and Seow lated into Chinese and Malay by Nielsen’s
2005; Basu 2009). However, they are limited in experienced translators. A total of 2,006 women
nature as well since only those who actively seek aged between 18 and 69 years old were sur-
help from public hospitals, the Family Court, or a veyed through a random sampling of Singapore
social service agency are covered. There has not households (mean age of respondents: 42.5
been an effort to uncover the true extent of male years).6 Only one woman (whose birthday was
violence against women, the victims’ profile and next) in each household was identified for the
their experiences when engaging help from the survey. Female interviewers were used and all
police, and so on through a victim survey. the interviews were conducted in person. The
interviews were conducted between February
and May 2009.
2
Even when statistics on the category of “rape” was pro- Owing to earlier studies which found a
vided for 1989–2008 (see http://www.spf.gov.sg/stats/
stats_doc/stats_selected_areasconcern08.pdf, last accessed
disproportionate number of Indians among women
2 July 2010), this included cases of “statutory rape”, i.e. who experienced violence (Seow et al. 1995;
consensual sex with an underaged girl, which raise differ- Subordinate Courts of Singapore 1998; Lim 2002;
ent concerns from cases involving non-consensual sex.
3
The data for the second half of 2001 and for 2006 are missing.
4
This category includes applications from men as well as
5
women applicants who may have been abused by other The IVAWS has been conducted in 11 jurisdictions to
women in the household, e.g. by their daughter or mother. date: Australia, Costa Rica, the Czech Republic, Denmark,
Protection orders are only available against certain forms of Greece, Hong Kong, Italy, Mozambique, the Philippines,
violence and for those in (or have been in) certain relation- Poland, and Switzerland (collectively called “IVAWS par-
ships with the abuser. A “protection order” is a form of ticipating countries”). See Killias et al. (2004); Mouzos
restraining order made by a court which requires an abuser and Makkai (2004); Johnson et al. (2008).
to refrain from further acts of violence or he/she will be sent 6
Using the Nielsen Residential Sampling Frame which
to jail or fined otherwise. See the Women’s Charter (Chapter spreads the potential households across all the geographi-
353, 2009 Revised Edition) Part VII and Chan (1996). cal locations and dwelling types in Singapore.
21 Violence Against Women in Singapore… 331
Foo and Seow 2005) it was decided to over-sample Table 21.1 provides the profile of the respon-
this ethnic group in order to capture their experi- dents in the survey as compared with the female
ences. The final figures were re-weighted to reflect population aged between 20 and 69 years old in
the overall profile of the residents in Singapore. Singapore given by official sources. It can be seen
332 W.-C. Chan
that the profiles are not exact matches. This can be 4. Slapped, kicked, bitten, or hit with a fist
explained on the basis that the respondents sur- 5. Tried to strangle, suffocate, burn, or scald
veyed include not only Singapore citizens and 6. Used or threatened to use a knife or a gun
Singapore permanent residents (whose profile is 7. Any other physical violence
given in the official data) but also foreigners who
have set up a home in Singapore on a temporary 21.3.1.2 Sexual
basis such as students, those who are in Singapore 1. Forced into sexual intercourse
on work contracts, and dependants of foreigners 2. Attempted to force into sexual intercourse
who are entitled to bring them into Singapore 3. Touched sexually
while they are here on work or study arrange- 4. Forced or attempted to force into sexual activ-
ments.7 The latter groups tend to have a higher ity with someone else
proportion who are younger as well as older per- 5. Any other sexual violence
sons, be of different ethnic minorities, and have It was found that Singapore had the lowest
different housing options as compared to the rate of lifetime violence victimisation (9.2%) as
Singapore population. These differences are also compared to the other IVAWS participating
reflected in their monthly household income as countries (see Fig. 21.1). Singapore also had the
shown below.8 A decision was taken to include lowest rate of lifetime physical violence victimi-
foreigners who have set up a home in Singapore sation (6.8%) and the lowest rate of lifetime
as well since they have been included in the sexual violence victimisation (4.2%) as com-
IVAWS conducted in other parts of the world and pared to the other IVAWS participating countries
there is a need to respond to all those who have (see Fig. 21.2).
been victimised in Singapore or victimised abroad
but are currently living in Singapore.
21.3.2 Experience of Violence
in the Last 12 Months
21.3 Preliminary Findings
The respondents in the Singapore survey
21.3.1 Lifetime Experience of Violence reported the second lowest rate of 1-year vio-
lence victimisation (2.6%) as compared to the
The IVAWS asked respondents specific questions other IVAWS participating countries (see
about whether they had ever experienced, since Fig. 21.3). Singapore, together with Hong Kong,
the age of 16 years, 7 types of physical violence had the second lowest rate of 1-year physical
and 5 types of sexual violence used against them violence victimisation (2.1%). Singapore also
by any man. They are the following: had, together with Switzerland, the lowest rate
of 1-year sexual violence victimisation (0.5%)
21.3.1.1 Physical as compared to the other IVAWS participating
1. Threatened with hurt physically countries (see Fig. 21.4).
2. Thrown something or hit with something The most common forms of physical violence
3. Pushed or grabbed, having arm twisted or hair were (1) being threatened with hurt physically,
pulled followed by (2) being pushed or grabbed, having
arm twisted or hair pulled; and (3) being slapped,
7
It was reported that of the total population of Singapore kicked, bitten, or hit with a fist. The most com-
in 2008 of 4.8 million, only 3.6 million were Singapore mon form of sexual violence was non-consensual
citizens and Singapore permanent residents (Department sexual contact.9
of Statistics 2009a).
8
A household refers to persons living together in the same
house and sharing common food or other living arrange-
9
ments. It includes a person living alone or a person living Note that some victims may have experienced multiple
with others but having her own food arrangements. types of violence.
21 Violence Against Women in Singapore… 333
Australia 57%
Mozambique 55%
Denmark 50%
Switzerland 39%
Poland 35%
Philippines 17%
Singapore 9%
21.3.3 Repeat Victimisation nine times; and 13.4% who experienced violence
ten times or more.
A total of 58.8% of victims experienced repeated Repeated victimisation was higher for those
victimisation in Singapore. This comprised who experienced physical violence (64.0% of
35.7% who experienced violence two to four victims of physical violence experienced repeated
times; 9.7% who experienced violence five to victimisation) as compared to victims of sexual
334 W.-C. Chan
Australia 10%
Poland 6%
Philippines 6%
Denmark 5%
Hong Kong 4%
Singapore 3%
Switzerland 2%
Table 21.2 Profile of respondents who have experienced violence in the last 12 months
Percentage of respondents who
have experienced violence Percentage of all
in last 12 months (weighted N) respondents (weighted N)
Age group
18–29 years 15.1% (8) 24.4% (489)
30–39 years 47.2% (25) 21.4% (429)
40–49 years 20.8% (11) 20.5% (412)
50–59 years 17.0% (9) 16.3% (327)
60–69 years 1.9% (1) 17.4% (349)
Ethnicity
Chinese 71.7% (38) 73.1% (1,467)
Malay 18.9% (10) 10.8% (216)
Indian 7.5% (4) 8.1% (163)
Other 0% (0) 7.9% (159)
Type of housing
HDB 1- and 2-room flats 17.0% (9) 6.2% (125)
HDB 3-room flats 15.1% (8) 17.8% (358)
HDB 4-room flats 43.4% (23) 37.5% (752)
HDB 5-room and executive flats 7.5% (4) 21.5% (431)
Condominiums and private apartments 15.1% (8) 11.6% (233)
Landed housing 0% (0) 5.3% (106)
Highest education level attained
No formal education 0% (0) 4.8% (97)
Some primary/completed primary 9.4% (5) 18.0% (362)
Some secondary/completed secondary 43.4% (23) 35.3% (709)
Pre-university/Junior College 0% (0) 7.6% (153)
Polytechnic/Diploma 15.1% (8) 14.3% (286)
University Degree/Postgraduate 30.2% (16) 19.7% (396)
Table 21.3 Respondents who experienced intimate partner and non-intimate partner victimisation
Percentage of respondents Percentage of respondents who
who experienced intimate partner experienced non-intimate partner
victimisation (weighted N) victimisation (weighted N)
Felt life was in danger 42.4% (42) 34.3% (35)
Was physically injured 45.5% (45) 26.5% (27)
If physically injured, those who needed 28.9% (13) 22.2% (6)
medical care
Considered incident very serious at the time 28.3% (28) 19.6% (20)
Used alcohol and/or medication to cope 15.2% (15) 6.9% (7)
Regarded incident as a crime or a wrong 63.6% (63) 76.5% (78)
21.3.6 Involvement of Police and those in intimate partner and non-intimate part-
Assessment of Police Response ner victimisation were the same: (1) “dealt with it
myself/involved a friend or family member”; (2)
While the percentages of those whose victimisa- “too minor/not serious enough”; and (3) “did not
tion was reported to the police or other judicial want anyone to know” (see Table 21.5).10
authorities did not differ much between those But it should be noted that those involved in
involved in intimate partner and non-intimate part- intimate partner victimisation were more likely
ner victimisation (see Table 21.4), the former were
more likely to be pleased with the way the police 10
More than one response could be given by the respon-
handled the case than the latter (see Table 21.7). dents. A small number of responses were also given for
Where the incident was not reported to the “would not be believed”, “part of the job”, “reported to
police, the three most common reasons given by someone else”, and “other reasons”.
21 Violence Against Women in Singapore… 337
to give the reason “dealt with it myself/involved a partner incidents than intimate partner incidents
friend or family member” and “did not want the (see Table 21.6).
offender arrested/in trouble with the police” for Where the incident was reported to the police,
not reporting the incident to the police than those those involved in intimate partner victimisation
involved in non-intimate partner victimisation. were more likely to be satisfied with the way the
On the other hand, those involved in non-intimate police handled the case than those involved in
partner victimisation were more likely to give the non-intimate partner victimisation (see
reason “did not think police could do anything” Table 21.7). A total of 76% of those involved in
and “did not think the police would do anything” intimate partner victimisation who reported the
for not reporting the incident as compared to incident to the police were “very satisfied” or
those involved in intimate partner victimisation. “satisfied” as compared to 40.9% of those
If the incident was reported to the police, the involved in non-intimate partner victimisation.
most common form of action taken by the police
in both intimate partner and non-intimate partner
victimisation cases is to “take a report”, but the 21.4 Comparison with Previous
police are more likely to “give a warning” in inti- Singapore Studies
mate partner victimisation incidents.11 On the
other hand, the police were more likely to “take a Several limited scale studies have emerged in
report” and “do nothing” in cases of non-intimate Singapore on female victims of violence. These
partner victimisation (see Table 21.6). give a profile of those who had gone to public
Criminal charges were slightly more likely to hospitals for medical assistance (Seow et al. 1995;
be brought against the perpetrator in non-intimate Lim 2002; Foo and Seow 2005), to the Family
Court for a protection order (Subordinate Courts
11
More than one response may be given by the respondents.
of Singapore 1998), or to a social service agency
A small number of other responses were also given for for counselling support (Basu 2009). Although
“provided protection to me” and “something else”. they are limited in scope, it is nevertheless useful
338 W.-C. Chan
to compare the results of the present survey with Subordinate Courts of Singapore 1998; Lim
these earlier studies to note commonalities and 2002; Foo and Seow 2005), the present survey
differences. also found that the Malays were over-represented
First, in common with three out of four of the among those who reported experiencing violence
earlier studies where information on age groups in the last 12 months (18.9%). Malays in the ear-
was available (Subordinate Courts of Singapore lier studies ranged between 15.0% (Seow et al.
1998; Lim 2002; Foo and Seow 2005),12 the pres- 1995) and 20.9% (Foo and Seow 2005). The pro-
ent survey also found that the highest proportion portion of Malays in Singapore’s resident popu-
of victims who reported experiencing violence in lation amounted to 13.6% in 2008 (Ministry of
the last 12 months came from those who are in Community Development, Youth and Sports
their 30s (47.2%). 2010) and, as noted above, comprised 12.2% of
Second, in common with three of the four ear- Singapore’s female population aged between 18
lier studies where information on educational and 69 years old.
attainment was available (Seow et al. 1995; Foo On the other hand, one aspect of inconsis-
and Seow 2005; Basu 2009),13 this survey also tency is that the present survey did not find an
found that the highest proportion of victims who over-representation of Indian victims unlike the
reported experiencing violence in the last 12 four earlier studies which did (Seow et al. 1995;
months came from those who had secondary Subordinate Courts of Singapore 1998; Lim
school education (43.4%).14 2002; Foo and Seow 2005). The present survey
Third, the high proportion of victims with found that Indian female victims accounted for
tertiary education who reported experiencing 7.5% of those who reported experiencing vio-
violence in the last 12 months in this survey lence in the last 12 months. In comparison, the
(30.2%) is supported by one of the studies where earlier studies found that Indians comprised
this group was also found to be the second high- between 15.3% (Lim 2002) and 28.1% of their
est in proportion. That study which looked at the samples (Subordinate Courts of Singapore
profile of female victims of family violence who 1998). The proportion of Indians in Singapore’s
approached a social service agency for counsel- resident population in 2008 amounted to 8.9%
ling found that 24.9% had tertiary education, as (Ministry of Community Development, Youth
compared to 48.2% with secondary education and Sports 2010) and 8.4% of Singapore’s
and 15.7% with primary education (Basu 2009). female population aged between 18 and 69
Fourth, in common with all the four earlier years old.
studies where information on the ethnicity of the
victims was available (Seow et al. 1995;
21.5 Discussion
12
More data will be forthcoming from the IVAWS
But note that the Subordinate Courts of Singapore
(1998) study included men who applied for protection conducted in Singapore when the final report is
orders as well. In the Seow et al. (1995) study, those who ready. Until then, some comments may be
were in their 30s were the second highest group, compris- made based on the preliminary results pre-
ing 35.6% of the total and those in their 40s accounted for sented here.
44.2% of the total.
13
Lim (2002)’s results are inconsistent with the other stud-
ies in showing a very high proportion of those with no
education (33.3%) and those with primary school educa- 21.5.1 Prevalence of Violence and
tion (44.4%). Repeat Victimisation
14
It is unclear whether the earlier studies classified those
with GCE A levels and diplomas as having secondary or
tertiary education, but this statement is correct regardless
It comes as no surprise that Singapore has very
how they are classified as it will not affect the proportions low rates of violence against women amongst all
substantially. the IVAWS participating countries. It confirms
21 Violence Against Women in Singapore… 339
what is known from rates of reported crime that 21.5.2 Profile of Victims Who
Singapore has one of the lowest crime rates in the Experienced Violence
world (United Nations Office on Drugs and in the Last 12 Months
Crime n.d.). More research of a cross-cultural
nature will be needed to uncover the possible Contrary to what has been found in surveys over-
commonalities shared by Singapore and other seas (Bachman and Saltzman 1995; Killias et al.
countries with a low rate of violence against 2004; Mouzos and Makkai 2004; Perkins 1997;
women. Tjaden and Thoennes 1998, 2000) where it was
However, the number of victims who experi- found that younger women were more prone to
enced multiple victimisations is a source of con- victimisation as compared to older women, the
cern. The rate of repeated victimisation reported present survey found that more women in their
in Switzerland, another country with a very low 30s reported to have experienced violence in the
rate of violence against women, was 39.4% last 12 months than any other group. Further
(Killias et al. 2004) as compared to 58.8% in research on this difference is needed. One possi-
Singapore. Singapore’s record in encouraging bility is that higher victimisation rates occur
victims of family violence to come forward has when women are married or when they join the
been dismal. It was found that 90.4% of persons workforce as compared to when they are in dat-
seeking a protection order were assaulted more ing relationships or still in school.
than once before they sought the order from the Some studies overseas (Mouzos and Makkai
Family Court: 23.2% were assaulted twice, 2004) have found that women from minority pop-
24.5% were assaulted 3 times, 21.8% were ulations experienced a higher level of victimisa-
assaulted 4 times, and 20.9% were assaulted 5 tion. The present survey also found that violence
or more times (Subordinate Courts of Singapore was over-reported by Malays but this was not true
1998).15 In another study, it was reported that of Indians in Singapore. Further research will be
about three-quarters of applicants suffered needed to confirm this finding as well as postulate
physical and non-physical forms of abuse for why this should be so. The over-representation of
more than a year (with more than 20% having Indians in the previous studies in Singapore (Seow
suffered for more than 10 years) before seeking et al. 1995; Subordinate Courts of Singapore
a protection order (Subordinate Courts of 1998; Lim 2002; Foo and Seow 2005) suggests
Singapore 2001). that Indians are more aware of the help services
It will be interesting to see to what extent available and are more willing to seek public
repeated victimisation is affected by the relation- assistance even though their level of victimisation
ship between the victim and the offender. It is may not be disproportionate to their numbers.
likely that repeated victimisation is far more Further research is also needed to confirm the
common among those victims who have or had, finding that those who have experienced violence
at least temporarily, shared an intimate relation- in the last 12 months are over-represented among
ship with the offender which is reflected in the those living in 1- and 2-room public housing as
data from the Family Court on protection orders well as those with university education. This
cited above. It is less likely for strangers, and per- appears inconsistent at first sight as it can be
haps for friends and relatives, to have the same expected that those with higher education will be
opportunities to commit repeated acts of violence more likely to live in better housing. There could
against the same victim. also be differences in these two groups in the type
of violence experienced. Those living in 1- and
2-room public housing may experience more
15
intimate partner violence whereas those with uni-
These results were confirmed by a later study which
versity education could experience more non-
found that only 11% of cases did not have any history of
past violence when they applied for a protection order intimate partner violence since they are likely to
(Subordinate Courts of Singapore 2004). spend more time away from the home.
340 W.-C. Chan
Philippines, and Poland (Johnson et al. 2008). It Chan, W. C. (1996). Latest Improvements to the Women’s
should also be noted that positive attitudes towards Charter. Singapore Journal of Legal Studies, 553–599
Department of Statistics. (2009a). Population trends 2009.
the police do not necessarily translate to a sense of Singapore: Department of Statistics.
satisfaction with the criminal justice system in Department of Statistics. (2009b). Report on the
general (Johnson et al. 2008). Household Expenditure Survey 2007/08. Singapore:
Department of Statistics.
Fleury, R. (2002). Missing voices: patterns of battered
women’s satisfaction with the criminal legal system.
21.6 Conclusion Violence Against Women, 8(2), 181–205.
Foo, C. L., & Seow, E. (2005). Domestic violence in
More research, both qualitative and quantitative, Singapore: A ten year comparison of victim profile.
Singapore Medical Journal, 46, 69–73.
on the issue of violence against women in Garciá-Moreno, C., Jansen, H., Ellsberg, M., Heise, L., &
Singapore is needed in order to fill the gaps in Watts, C. (2005). WHO multi-country study on wom-
what we know about it as well as formulate en’s health and domestic violence against women.
effective strategies to tackle this problem. Geneva: World Health Organization.
Johnson, H. (2006). Measuring violence against women:
Although this survey, like other surveys of this Statistical trends 2006. Ottawa: Ministry of Industry.
nature, may be criticised in that it may be inac- Johnson, H., Ollus, N., & Nevala, S. (2008). Violence
curate owing to under-reporting and wrong against women: An international perspective. New
information being given by respondents, it is York: Springer.
Killias, M., Simonin, M., & De Puy, J. (2004). Violence
nevertheless a first attempt at giving a systematic experienced by women in Switzerland over their
view of the issue in Singapore through a large- lifespan. Lausanne: Ecole des Sciences Criminelles,
scale victim survey. It is hoped that the present University of Lausanne.
survey, with a fuller report to follow soon, will Lim, C. (2002). Domestic Violence Risk Markers. A paper
presented at the Singapore General Hospital 13th
go towards a better understanding of the issue Annual Scientific Meeting 2002.
and aid policy formulation to eradicate violence Ministry of Community Development, Youth and Sports.
against women and promote gender equality in (2009). Protecting families from violence: The
Singapore. Singapore experience. Singapore: Ministry of
Community Development, Youth and Sports.
Ministry of Community Development, Youth and Sports.
Acknowledgments The IVAWS conducted in Singapore (2010). Social statistics in brief 2009. Singapore:
was funded by the National University of Singapore (proj- Ministry of Community Development, Youth and
ect number R-241-000-069-112). The other members of Sports.
the research team were Mr. Benny Bong and Ms. Suzanne Ministry of Community Development, Youth and Sports.
Anderson, both of whom are from the Society Against (n.d.(a)). Violence Against Women: Reported Cases of
Family Violence in Singapore. Parts of this chapter were Spousal Violence, 1998–2006. Retrieved 2 July 2010
first presented at the inaugural meeting of the Asian from http://app1.mcys.gov.sg/ResearchRoom/Research
Criminological Society in Macau SAR, Asian Criminology Statistics/ReportedCasesofSpousalViolence.aspx.
in a Global Context—Challenges and Prospects, 17 to 20 Ministry of Community Development, Youth and Sports.
December 2009. (n.d.(b)). Violence Against Women: Medical
Assistance Sought in Violence Cases, 1995–2008.
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Victims of Crime in Taiwan
22
Hsiao Ming Wang
The term “crime victims” generally refers to ships, victim–criminal justice relationships,
any person, group, or entity who has suffered victims and the cost of crime, victims and the
injury or loss due to illegal activity. The harm can media, as well as victims and social movements
be physical, psychological, or economic (Karmen (Karmen 2007).
2007). The individuals to whom the offense actu- Scholars who dedicate themselves to advance
ally occurred are called “primary crime victims.” the knowledge of victimology are called “vic-
However, crime victimization is not limited to the timologists.” Because official data usually cannot
primary victim. Secondary crime victims are present a whole picture of crime, victimologists
those who experience the harm second hand, often use surveys of large number of people about
such as intimate partners of rape victims or chil- the crimes that have been committed against
dren of a battered woman (Karmen 2007). Besides them. Several large-scale victimization surveys
“secondary crime victims,” there are also “ter- have been conducted in various countries, such as
tiary crime victims” who experience the harm the National Crime Victimization Survey
vicariously (Sessar 1990). In a case that A kills (NCVS)1 in the United States and the British
B, for example, B is the primary victim while his Crime Survey (BCS)2 in the United Kingdom
family dependants are secondary crime victims. (Maxfield and Babbie 2009). Today, most vic-
Supposed B is a project manager of a software timologists are engaging in at least one of the fol-
company; his boss is the tertiary crime victim for lowing activities (Huang and Zhang 2011):
losing the contract due to the sudden death of B. • Define the problem: Find the asymmetry of
From criminological perspective, the above power, analyze responsibility, explore the
statement presents a broad view of crime victims. kinds of harm.
In line with criminal law, a victim of crime is an • Measure true dimension of the problem:
identifiable person who has been harmed indi- Analyze statistics, see what kind of people are
vidually and directly by the perpetrator, rather involved, accurately gauge the extent of harm.
than by society as a whole. However, this legal • Investigate how criminal justice system han-
definition is system-oriented and has its restric- dles the problem: Look at what criminal
tion (McShane and Williams 1992). For example, justice system ignores, ask what victim wants,
Croall (2001) argued that the system-oriented analyze effects, chronicle emergence of vic-
definition may ignore or even deflect attention tim’s movement.
from white-collar crime victims whom may not • Examine societal response to problem: Look
be clearly identifiable or directly linked to crime at issues of constitutional rights, analyze pro-
against a particular individual. In this chapter, the posed legislation, analyze media reaction, see
broad view of crime victims is applied. if anyone is cashing in on the problem.
The process of becoming a victim refers to The studies of victimization in Taiwan can
“victimization,” and the scientific study of vic- be traced to 1970 (Huang and Zhang 2011).
timization is named “victimology” (Karmen The first national criminal victimization survey
2007). The term “victimology” was coined by
Benjamin Mendelsohn in 1947 (Huang and
Zhang 2011). Although its roots can be traced to 1
The NCVS, administered by the US Bureau of Justice
a number of earlier works on crime victims in the Statistics, is a national survey of approximately 77,400
households twice a year in the United States. The survey
1940s, victimology emerged as a recognized spe-
focuses on gathering information on the offenses assault,
cialization within criminology in the early 1970s burglary, larceny, motor vehicle theft, rape, and robbery as
(McShane and Williams 1992; Miethe and Meier well as characteristics and consequences of victimization.
1994). In the past, criminology was primarily 2
The BCS, presently carried out by BMRB Limited on
focused on the offender; victimology shifted the behalf of the Home Office, seeks to measure the amount
of crime in England and Wales by asking around 50,000
interest to the victim of crime (Schneider 2001a). people aged 16 and over (as of January 2009), living in
Victimology encompasses not only the study of private households, about the crimes they have experi-
victimization but also victim–offender relation- enced in the last year.
22 Victims of Crime in Taiwan 345
in Taiwan was undertaken in 2000. However, are equally likely to suffer from psychological
“the victimization issue in Taiwan seems to be disruptions (Schneider 2001b). When more
underdiscussed and investigated” (Kuo et al. intense psychological reactions occur the most
2009). The development of victimology and common include “fear, resentment, anger against
victims’ rights movement is addressed in this offender and CJ system, and humiliation”
chapter. (Williams 1999, p. 51). In Taiwan few prior
research projects have examined those practical
issues; this chapter briefly reviews related findings
22.2.2 Practical and Theoretical Issues in the following sections.
in the Relationship to the Formal The victim precipitation theory, an earlier
Criminal Justice System explanation of victimization in the context of
research on homicidal criminality, postulated that
The concept of “criminal justice” was first some victims may “contribute” to their own vic-
coined by Jerome Michael and Mortimer Adler timizations (Wolfgang 1958). Siegel (2009)
in 1932 (Laub and Edwin 2006). In a report pointed out two types of precipitations: active
titled “the challenge of crime in a free society,” and passive. “Active precipitation occurs when
the President’s Commission on Law Enforcement victims act provocatively, use threats or fighting
and Administration of Justice created the term words, or even attack first,” whereas “passive
“criminal justice system” and advocated a precipitation occurs when the victim exhibits
“systems” approach to criminal justice, with some personal characteristic that unknowingly
improved coordination among law enforcement, either threatens or encourages the attacker”
courts, and correctional agencies (Walker 1992). (Siegel 2009, p. 73). Over the years, the victim
Traditionally, criminologists look into crimes precipitation theory has been perceived as a nega-
from the perspective of criminals. However, tive connotation against victims and victim advo-
Hans von Hentig argued that “the study of crime cates, whereas routine activities theory and
is not complete unless the victim’s role is con- lifestyle theory were shaped and substantially
sidered” (Siegel 2009, p. 15). The argument of tested (Schneider 2001a).
von Hentig highlights the importance of the Routine activities theory, developed by Cohen
relationship between crime victims and criminal and Felson (1979), maintained that crime occurs
justice system. whenever three conditions come together: suit-
The police are the starting point of the crimi- able targets, motivated offenders, and absence of
nal justice system to most crime victims. It is guardians. This theory assumed that motivated
necessary to know why many victims do not offenders always existed and were waiting for an
report crimes to the police. In addition to that, the appropriate time, place, and target; therefore,
criminal justice system usually focuses on the “engagement in activities in non-household set-
individual to whom the offense actually occurred tings elevated the likelihood of becoming a vic-
(Karmen 2007). However, crime victimization is tim” (Kuo et al. 2009, p. 462). Lifestyle theory
not limited to the primary victim. Secondary vic- claimed that “crime is not a random occurrence
tims are usually being ignored by the criminal but rather a function of the victim’s lifestyle”
justice system. The psychological effect of crimi- (Siegel 2009, p. 73). For example, college stu-
nal victimization is another practical issue being dents who frequently joined parties and took rec-
ignored by the criminal justice system. The psy- reational drugs were much more likely to be
chological effect can be nonexistent to extreme, violent crime victims than those who avoid
and can range from short to long term (Wallace such risky academic lifestyle (Fisher et al. 1998).
1998), depending on the type of victimization, A number of empirical studies tested these two
amount of loss incurred, and trauma suffered. theories in Taiwan, which are also reviewed in
Additionally, both primary and secondary victims this chapter.
346 H.M. Wang
22.2.3 The Potential and Limitations of have the right to both attend proceedings and
“Alternatives” to Criminal Justice deliver or submit a victim impact statement.
However, this achievement still has its limita-
As victimology advanced and matured, the tions due to the fact of middle-class symbolism.
public were more aware of victim’s rights in the McShane and Williams (1992) distinguished two
past decades. As a result in addition to victim perspectives of crime victim definition: static and
compensation, many victims’ crusading groups dynamic. The static perspective presents the mid-
had emerged to focus on specific needs of differ- dle-class symbolism and views the victim and
ent offenses, such as drunken driving, missing offender as “part of a strict dichotomy, a mutually
children, and rape (McShane and Williams 1992). exclusive set of categories. The offender cannot
In the United States, victim-oriented crime poli- be viewed as victim, nor can the victim be viewed
cies had made large progress. Schneider (2001b, as offender” (McShane and Williams 1992,
p. 548) summarized eight federal laws to illus- p. 261). The dynamic perspective suggests that
trate this achievement as below: “at least some offenders and victims can be
• The 1982 Victim and Witness Protection Act thought of as participants in a dynamic, ongoing
improves victims’ rights and services. interaction. At any point, participants can be
• The 1984 Victims of Crime Act provides sub- called the victim or the offender, depending on
stantial financial funds for victim assistance the stage of the interaction” (McShane and
and treatment programs. It supports the estab- Williams 1992, p. 261). McShane and Williams
lishment of interdisciplinary victimological (1992) argued that the static perspective is domi-
institutes of teaching and the publication of nant among the public and the media for the pur-
victimological literature. pose of social order maintenance. They suggested
• The 1986 Children’s Justice and Assistance Act victimology to undertake the dynamic view; oth-
reforms the handling of cases of child abuse erwise victimology remains “a pawn of the state
and reduces the effect of the traumatic experi- and political process” (McShane and Williams
ences that children undergo during their partici- 1992, p. 269).
pation in the criminal justice proceedings.
• The 1990 Victims’ Rights and Restitution Act
endows the victim with the right of restitution. 22.3 Main Focus of the Chapter
This act entitles the victim to be treated with
fairness and due respect for his or her dignity 22.3.1 The Role of Victim Surveys
and sphere of privacy. in Generating Criminological
• The 1990 Victims of Child Abuse Act supple- Interest in Victims
ments the reform of the treatment of child victims
and witnesses in the federal judicial system. The crime victimization survey in Taiwan can be
• The 1994 Violent Crime Control and Law traced back to a research project undertaken by
Enforcement Act grants the victims of violent Professor Chuen-Jim Sheu (1994). This project,
and sexually motivated crimes a right of par- contracted by Kaohsiung City Police Bureau,
ticipation in the criminal proceedings. It guar- investigated 2,416 people from Kaohsiung City
antees the victims’ restitution and intensifies and other six counties in Taiwan about their expe-
the punishment for crimes of violence against riences of victimization. Because of the limited
women and elderly persons. size of samples and the method of non-probabil-
• In 1996, the Megan’s Law amendment to the ity sampling used, the results of this pioneer work
Jacob Wetterling Crimes against Children and are very difficult to be used for inferential statis-
Sexual Violent Offender Act was enacted to tics (Huang 2006).
help ensure that communities are notified of the The first nationwide crime victimization sur-
release and location of convicted sex offenders. vey in Taiwan was conducted by Sheu and his
• In 1997, Congress passed the Victim’s Rights associates in 2000 (Kuo et al. 2009). This survey
Clarification Act, asserting that victims should was initiated by the National Police Agency
22 Victims of Crime in Taiwan 347
(NPA) as a response to a newly enacted law for tion of larceny, assault, robbery, and snatch3
strengthening the crime victims’ protection. happened in Taiwan in 2009 (National Taipei
However, there are certain limitations of the 2000 University 2010). The 2010 TACVS indicated
victim survey. For example, it cannot estimate that larceny is the most prevalent offense
the “dark figure” and has no capacity for com- (10.43%), followed by assault (0.59%), snatch
prehending repeat victimization (Huang 2006). (0.42%), and robbery (0.04%). The robbery vic-
Therefore, a second wave of nationwide crime tims are most likely to report their victimizations
victim survey was conducted by the same NTPU to police (42.86%), followed by snatch (37.33%),
research team in 2005. assault (29.11%), and larceny (18.36%) victims.
The 2005 survey had used two methods of In other words, individuals in Taiwan are most
gathering information—telephone survey and in- likely become crime victims of larceny but are
person interview. The telephone survey is used for least likely to report this kind of crime to police.
understanding the prevalence of crime and “dark The main reason why victims do not report indi-
figures,” while in-person interview is used for vidual victimizations to the police is “too petty to
understanding the victims’ reaction to police case report” (55.35%), followed by that “it won’t do
processing and citizens’ request (Huang 2006). anything good” (27.63%). The average loss of
The third wave of crime victim survey in larceny, robbery, and snatch was $173,4 $379,
Taiwan was undertaken in 2010. Research team and $255, respectively (National Taipei University
used the method of Computer-Assisted Telephone 2010).5 According to the R.O.C. (Taiwan)
Interview (CATI) for gathering victimization National Statistics, the 2009 GDP in Taiwan was
information in 2009 but seek to represent the US$16,359 (National Statistics 2011a). This
nationwide population of persons aged 12 living figure is about one-third of that of the United
in household. A sample size of 16,015 was States in the same year. However, given the facts
obtained by using stratified sampling over the 20 of relatively low living expenses ($6,548 per
counties/cities in Taiwan. Among the persons person) and high savings ($1,919 per person) in
experiencing victimization in 2009, research Taiwan, damages ranged between $173 and $379
team used multistage cluster sampling (i.e., theft, perhaps are still bearable for most Taiwanese
motorcycle theft, auto theft, fraud, robbery, and (National Statistics 2011a).
snatch) to obtain 1,800 samples for in-person The findings of 2010 TACVS were partially con-
interview (Sheu et al. 2011). sistent with the CRC-NCCU crime victimization
In addition to these three waves of crime survey in the same time period.6 According to the
victimization survey undertaken by Sheu and
associates, the Crime Research Center of the 3
According to the Glossary in the 2010 TACVS Report
National Chung-Cheng University (CRC-NCCU) (National Taipei University 2010, p. 181), these four
also conducted biannually nationwide survey in offenses were defined as below:
• Larceny: Taking property away from persons without
2009, 2010, and 2011. The CRC-NCCU success-
their awareness, including bicycle thefts, items taken
fully obtained a sample of 2000 in each wave of away from vehicles and motorcycles, but excluding
the phone survey by randomly selecting persons motor vehicle thefts, motorcycle thefts, and taking
aged 20 living in households in Taiwan (CRC- property from residences.
• Assault: An unlawful injury of other person’s body or
NCCU 2011).
health.
• Robbery: Offenses where valuables were taken from
persons by force, threat of force, drug, or hypnosis.
22.3.2 The Nature and Scope • Snatch: Offenses where valuables were taken from per-
sons in surprise but not by force.
of Victimization in Taiwan 4
The average exchange rate between the US dollar and
TW dollar was 1:33 in 2009. Hereafter, all monetary unit
22.3.2.1 Individual Victimization is noted in the US dollar.
The 2010 Taiwan Areas Criminal Victimization 5
The monetary damage of assault was not inquired in the
Survey (TACVS) examined individual victimiza- 2010 TACVS (National Taipei University 2010, p. 24).
348 H.M. Wang
not report household victimizations to the police loss of each case is less than $3.3, while police
is “too petty to report” (49.22%), followed by officers maintained that the minimum loss ranged
that “it won’t do anything good” (25.21%). The between $3.4 and $100. The possible reason for
average loss of residence larceny was $1,470 this difference is that the cases that involved small
(National Taipei University 2010). amount of loss were not being reported to the
The 2010 TACVS did not present the average police (Mong 2006).
loss of fraud but indicated that about 65% of When a case was reported to the police, most
respondents were victims of fraud with no loss police officers believed that they will be at the
and only 1.1% of respondents were victims of site within 5 min whereas most security mangers
fraud with loss. On the other hand, the CRC- perceived more than 5 min of police’s arrival. In
NCCU crime victimization survey showed that addition to this disagreement, more than 75% of
4.1% of respondents were victims of fraud with police officers believed that most reported cases
an average loss of $8,576 in the first half year of were cleared while only 42% of security mangers
2009, and 3.5% of respondents were victims of had the same perception. Furthermore, most
fraud with an average loss of $6,848 in the sec- police officers perceived a good interaction
ond half year of 2009. It is estimated that the total between their substations and retail stores in their
damages for fraud in Taiwan in the first and sec- beats but less security mangers maintained the
ond half year of 2009 were $2.71 billion and $1.8 same perception as that of police. Mong (2006)
billion, respectively. asserted that the interaction between police and
retails should be strengthened. In the regard of
22.3.2.3 Commercial Victimization security management, most retail stores perceived
In Taiwan, most research projects in victimiza- themselves in good conditions with qualified per-
tion focus on individuals or households instead of sonnel but police saw the other way around.
business (Mong 2006). Dr. Weide Mong, a pro-
fessor of the Central Police University, conducted 22.3.2.4 The Impact of Victimization
a research about the perception of commercial The research indicated that being the victim of
victimization in Taiwan in 2005. He surveyed predatory crime (e.g., rape, robbery, or assault)
242 security managers of 242 large retail stores has a terrible burden that can have considerable
in Taiwan (one manager from each store) and 165 long-term consequences. The costs of victimiza-
police chief or deputy chief from 165 police sub- tion not only include physical injuries, property
stations which have at least one retail store located loses, and psychological trauma but also the
in their jurisdiction (one chief or deputy chief involvement of the police and other agencies of
from each substation) about their perceptions of the justice system (Huang and Zhang 2011). Fear
crime victimization happened in the business of crime is the most significant impact of victim-
venue in the past 6 months. ization indicated by prior research (Siegel 2009).
Mong’s findings presented in six directions: Prior research projects on fear of crime focused
general profile, amount of loss, crime reports, on four core factors: demographics, experience
interactions between retails and police, risk per- of victimization, social disorganizations, and
ception, and security management. Both security police performance (Sheu et al. 2011). It was
managers and police officers agreed that the most found that females (Box et al. 1988), elders
common offenses happened in the business site (Acierno et al. 2004), and people with victimiza-
are shoplifting and cars/scooters (a very popular tion experiences (Skogan and Maxfield 1981)
vehicle in Taiwan) theft, and that consumers are and perception of social disorganization (Gibson
more likely to be the suspects, comparing to store et al. 2002) were more likely to fear of crime.
employees. On average, 1–5 cases happened per As for police performance, most previous
month. In terms of amount of loss, security man- studies found that a better police performance
gers and police officers disagreed with each other. can decrease citizens’ fear of crime (Dietz 1997).
Security managers believed that the minimum In sum, the studies in the Western societies
350 H.M. Wang
indicated that many people fear crime, especially Sheu et al. (2011) used the data set of 2011
females, elders, and persons with victimization TACVS to examine the issue of fear of crime in
experience and perception of social disorganiza- Taiwan in a more comprehensive way. The major
tion. It is worthy to know to what extent this findings are summarized as below:
finding is true in Taiwan. • Most people (71.5%) in Taiwan are worried
Dr. Xie Jinqi, a social psychology professor at about being crime victims.
the Shih-Hsin University in Taipei, did an explor- • Females, middle-aged (40–49 years old), and
atory study about fear of crime in Taiwan. She sur- married/cohabitated people are more likely to
veyed 1,000 people who ranged from 10 to 86 years fear of crime.
old. She found a reverse liner relationship between • Persons who experienced victimization of lar-
age and fear of crime. Different from the finding of ceny, assault, snatch, residence larceny, motor-
Acierno et al. (2004), Xie (2005) found that the cycle theft, and fraud are more likely to fear of
older the age, the less the fear of crime. When the crime. Among these offences, assault and snatch
gender is taken into consideration, the reverse liner have most serious impacts on fear of crime.
relationship is still true in general for females but • Social disorganizations index (e.g., youths
not males. The men in the groups of young adults wandering on streets, fighting, and existence
(19–34 years old) and adults (35–54 years old) of arcade in the neighborhood) is significantly
fear more being victimized of car/scooter theft related to fear of crime. The more perception
when compared to the groups of youths (10– of social disorders, the more fear of crime.
18 years old) and seniors (55–84 years old). • Police officers’ attitude toward the victims is
On the other hand, the seniors and youths fear significantly related to fear of crime. The more
more to take taxies alone in the evening. Xie officers were able to patiently listening victims’
(2005) pointed out that this phenomenon could statements and more efficiently handle the
be caused by the fact that young adults and adults case, the less fear of crime.
in Taiwan are more likely to have cars and/or To sum up, fear of crime commonly exists in
scooters for their daily transpirations, while the society of Taiwan. Females, middle-aged
youths and seniors are more likely to rely on the people, and those with experienced victimization
public transportations or taxies. In addition to and perception of social disorders are more likely
that, almost all age groups across gender (except to fear of crime. However, the quality of police
female and male youth as well as male young service can ease the fear of crime. The last finding
adult) fear most being kidnapped. implicates that the police administration should
Xie (2005) urged that a specific historical not only promote the crime prevention measures
event may threat the validity of this finding. (e.g., installation of CCTV, branding ID on vehi-
During the time period of Xie’s survey, a hideous cles, and 165 antifraud hotlines) but also educate
case of abduction and murder happened in Taiwan officers in upgrading their services, especially
in 1997. The victim named Hsiao-Yen Pai (Hanyu receiving reports from crime victims.
Pinyin: Bái Xiăoyàn) was missing after leaving
for her school in the morning of April 14, 1997.
Her family received ransom request of $5,000,000 22.3.3 Tracing the Role of Victim
along with a severed piece of her little finger and Movements in Taiwan
a photograph of a half-naked girl bound with
tape. Pai’s deformed body was found in a drain- The victimization first time becoming a research
age ditch on April 25, 1997. It was perhaps topic in the context of criminology in Taiwan
because the victim’s mother Pai Ping-ping was a was in 1970. In the same year, the victimology
popular Taiwanese TV host and actress in Taiwan, was taught when the Central Police University
the press paid a lot of attentions on this case. The (CPU) in Taiwan established a section of crime
detail reports about suspects’ violent behaviors prevention in the policing graduate program
indeed terrified many Taiwanese at that time. (Huang and Zhang 2011).
22 Victims of Crime in Taiwan 351
In the late 1970s and early 1980s, a demo- The state responsibility perspective maintains
cratic movement was emerging in Taiwan where that the state has the responsibility to protect citi-
many grassroot foundations were created for pro- zens’ life and properties according to social con-
moting human rights, including crime victims’ tract. When citizen’s life and/or property were
rights. For example, Modern Women’s Foundation being damaged because of crime, the government
(MWF) was formally incepted in Taipei in 1987. has the obligation to compensate citizens’ dam-
The primary objective of MWF is to assist mod- ages. The social welfare perspective sustains that
ern women in seeking a balance role in the fast- the people of disadvantage groups are more likely
changing society where modern and traditional to be victimized according to crime data. The
value coexists in Taiwan. In the process, the state has obligations to protect disadvantage peo-
MWF discovers that the basic personal safety of ple and provide necessary compensations when
women has never had the attention it deserves. they are being victimized. The life protection
Consequently, as early as in 1988, the MWF set perspective upholds that the state has obligations
up a women protection center, offering profes- to relieve people in miserable situations. Hence,
sional information as well as legal and medical only people in miserable situation because of vic-
services to female victims. The MWF further timization are entitled to compensation from the
translates its services into a professional network government. The risk dispersion perspective,
for female victims of domestic violence, sexual derived from insurance theory, argues that there
abuse, or sexual harassment. is a risk for each person to being victimized.
The Republic of China Association of Hence, every citizen should share the damages to
Vehicle Victim Rescue (AVVR), another exam- victims (see Hsu 2005).
ple of grassroot organization for victims’ rights Initially, the life protection prevailed in the con-
in Taiwan, was created in 1988. At that time, it sideration of governmental budget.8 The draft of
had no mandatory auto insurance in Taiwan. In CVPA stated that only the victims in miserable
other words, the victims of auto incidents often life, when the offenders either cannot be identified
faced no compensations from the offenders. or have no capacity for compensation, are entitled
Hence, the main purpose of creating AVVR to request the government to support their life
was helping the victims of auto incidents to (Jiang 1998). The Legislation Yuan (the highest
obtain fair opportunities on trials and to claim legislation branch in Taiwan) asserted that it is not
reasonable civil compensations from the reasonable to ask the victims to locate offenders
offenders. The AVVR changed its name to the and to prove that offenders have no capacity to
Association of Auto Incidents Concerns after provide compensation hence revised the draft
the mandatory auto and motorcycle insurance accordingly. However, not all crime victims are
law was enacted in 1998 (Wu 2000). As of entitled to request compensation in the consider-
today, the minimum coverage for a death in the ation of government budget. The Article five of
car accident is up to $50,000. 1998 CVPA spells that only the severely injured
The victim rights movement in the 1980s victims and dead victims’ family members are
inevitably pushed the Ministry of Justice (MOJ) entitled to request compensations from the gov-
in Taiwan to promote the legislation for crime ernment when the injury and death were caused by
victims’ protection and compensation in 1993, crimes defined by ROC Penal Code. The compen-
and the Crime Victim Protection Act (CVPA) sation for medical expense is up to NT$400,000,
was finally enacted in 1998. Before the 1998
CVPA’s enactment, there was an extensive debate
about the scope of victims’ compensation. 8
As of 2011, the debt of Republic of China (Taiwan) is
In terms of state responsibility and the consid- estimated as NT$4,961,800,000,000 (about US$177.2 bil-
lion in the rate 1:28), which is about 37.5% of GDP (Lai
eration of government budget, there are four et al. 2011). The debt situation of Taiwan is much better
different perspectives: state responsibility, social than that of the United States, but the ROC Government is
welfare, life protection, and risk dispersion. always more conservative about raising debt.
352 H.M. Wang
for funeral expense is up to NT$300,000, and for living (up to US$33,333), medical bills (up to
legal aliment is up to NT$1,000,000.9 US$13,333), mental counseling (up to US$13,333),
and funeral expenses (up to US$10,000). In the
United States, rarely are two compensation
22.3.4 Identifying Changing Service schemes alike. Awards are typically in the range
and Procedural Rights for Victim of US$100 to US$15,000 (Siegel 2009, p. 78).
Comparing to that, the compensation schemes
22.3.4.1 Victim Compensation seem reasonable. However, those compensations
Because of public concern over welfare state and are considered as secondary. In other words, if the
the change of criminal policies, the MOJ in applicant has already received any social insur-
Taiwan began to promote the ROC legislative of ance benefit, damage or any other pecuniary
crime victims’ protection in 1993 (Zheng and benefit for the harm he/she suffered from a crimi-
Wang 2004). The ROC legislative Yuan promul- nal act, the sum of such other payments received
gated the CVPA on May 27, 1998, and officially by him/her shall be deducted from the amount of
enforced on October 1, 1998. However, not all crime victim compensation payable to him/her
types of crime victims are protected by this Act. under this Act (Article 11).
The protection is limited to “the family members The compensation decisions are made by two-
of deceased victims, seriously injured victims of level committees. The Crime Victim Compensation
criminal acts and victims of sexual assault crimes” Review Committee (hereinafter “Review
(Article 1). According to the Article 4 of the Act, Committee”) is established in each district court
those people are entitled to apply for crime vic- prosecutor’s office, while the Crime Victim
tim compensation paid by the prosecutors’ office Compensation Reconsideration Committee is cre-
of a district court or its branch court out of the ated in a high court prosecutors’ office for exam-
following funding sources: ining the appeals against the Review Committee’s
• The funds budgeted by the MOJ. decisions. Each level’s committee usually consists
• Amounts deducted from the total labor wages of six to ten members who are public prosecutors
paid to prisoners who participate in work pro- and law or medical science experts appointed by
grams in prison. the MOJ, and is presided by the chief prosecutor
• The proceeds from the criminal venture, the (Article 14). Upon payment by the prosecutors’
proceeds from sale of confiscated property of office of any crime victim compensation under
the criminals, or other proceeds. the Act, the prosecutors’ office has the right to
• Certain amounts deducted from the sum of make a claim for reimbursement against a con-
amounts payable by criminals for suspension victed defendant but such reimbursement shall
of sentence, deferred prosecution, or negotia- not exceed the compensation paid to the crime
tions relating to criminal judgments. victim (Article 12). In order to preserve the right
In line with the Article 9 of the Act, compensa- to claim reimbursement, the prosecutors’ office
tion may be made for loss of wages (up to may request the court to provisionally seize the
US$33,333), loss of future earnings for family property of the convicted defendant or others lia-
ble for indemnification for damage in accordance
with the applicable laws (Article 27).
9
According to Article 192 of the Civil Code in Taiwan, the
perpetrator should assume liability for damages to victim,
including medical expenditures, increased living expenses,
22.3.4.2 Victim Advocates
and funeral expenses in the case of wrongful deaths In order to assist crime victims or their family
against others; the perpetrator should also assume liability members to return to their normal lives, the
for the third person as long as the victims have a statutory Article 29 of the CVPA ruled that the MOJ and
maintenance obligation to the third person. The calcula-
tion of the amount of maintenance obligation should con-
the Ministry of the Interior (MOI) shall work
sider the actual conditions in line with the “Average Life jointly to establish a crime victim protection
Tables” calculated by the Ministry of Interior. institution but under the MOJ’s direction and
22 Victims of Crime in Taiwan 353
supervision. Hence, an organization named victims, whereas more than a third (36.1%) of
“Association for Victims Support” (AVS) was the respondents were violent crime victims.
created in 1999. The AVS has its head office in Forty-one respondents indicated that they
Taipei City and 21 branch offices located in each received compensations but only 17 people
Public Prosecutors Divisions under district courts satisfied the amount of compensations. While
across Taiwan. The Board of Directors is the the crime victims were being asked “how do
AVS’ highest authority. It is composed of nine to you know the service of AVS” more than one-
17 directors, being chosen from the MOJ staff fourth of the respondents indicated that the AVS
and serving a tenure of office for 2 years with no actively contacted them; but only one respon-
remuneration. The Prosecutor General of the dent was aware of the AVS’ service from the
Public Prosecutors Division under the Taiwan media. In addition to that, because the interac-
High Court serves the Chair of the Board. tion between the AVS and crime victims was
In order to maximize the protection function most likely depending upon the AVS staff’s
by assisting the victims or their survivors to reha- active contacts, 64 respondents indicated that
bilitate their normal life, the Association and its the first contact by AVS happened 30 days or
representative offices in various areas have later after their victimizations. When the
recruited and encouraged some social public hav- researchers used chi-squared test to examine the
ing enthusiasm for safeguarding public interests relationship between the first-contact days and
to act as volunteers and join the team dedicated satisfactions of AVS’ service, it was found that
for protection of victims of criminal acts and the fewer the first-contact days, the more
establishment of protection service networks for satisfied victims were with AVS’ service.
victims of criminal acts by working actively to However, the AVS is not a part of government
the furtherance of the victims protection task. organizations; the prosecutor’s office has no
Presently, a total of some 1,300 volunteers, indi- obligation to notify the AVS about the crime
viduals, and/or in-groups have joined this force. victims who entitled the assistances under the
Most of them are college/university graduates CVPA. Zheng and Wang (2004) suggested that
and currently working in industrial/commercial the AVS should strengthen its media connec-
sectors or in governmental agencies. tions to let publics to know its availability to
The operational funds of AVS mainly come crime victims.
from the budgets of the MOJ and the MOI and Recent news shows a progress of victim advo-
public donations. In line with the Article 29 of cates in Taiwan. The legislature voted on
the CVPA, the AVS not only advocates the pro- November 15, 2011, to expand protection for
tection of crime victims but also provides neces- crime victims to cover foreigners, including
sary help to crime victims, including securing workers and spouses from China, Hong Kong,
emergent physical and mental treatments, finding Macau, and other countries. Under the current
a place for staying, legal counseling in the course version of the CVPA, a set of measures designed
of the judicial investigation or trial, applying for to protect crime victims does not extend to for-
compensations, and obtaining medical treatments eign spouses and workers from countries that do
and rehabilitations. not provide reciprocal treatment to Taiwanese.
Zheng and Wang (2004) conducted a research After the amendment comes into force, those
about the crime victims’ perception of the AVS’ foreign spouses and other foreigners are entitled
performance. The researchers used the method to the service from the AVS. Lawmakers in
of quota sampling to mail questionnaires to 600 Taiwan “agreed to remove the principle of reci-
crime victims across 19 jurisdictions in Taiwan procity on the grounds that it went against the
(Jinmen and Mazhu counties were excluded), spirit of the International Covenant on Civil and
and 144 questionnaires were sent back, making Political Rights, which Taiwan has signed and
a response rate around 25%. More than half ratified even though it is not a UN member”
(53.2%) of the respondents were auto incident (Shih 2011).
354 H.M. Wang
22.3.4.3 Victim Right party in 1986. In 1996, citizens in Taiwan for the
Taiwan enacted the CVPA in 1998 and amended first time elected the ROC President by direct
it in 2011. However, the focus of the Act is resti- votes rather than by the National Assembly. In
tution or compensation to crime victims rather 2000, DPP candidate Chen Shui-bian was elected
than the victim right. According to Song (2007), president, marking the first-ever transfer of gov-
the legal protection of victim right in Taiwan is erning power between political parties. The pres-
still based on the Code of Criminal Procedure idential inauguration of the KMT’s Ma Ying-jeou
(CCP). With respect to the CCP, crime victims in 2008 marked the nation’s second democratic
(or their family members) in Taiwan have four transfer of power between parties (Government
basic rights: Information Office 2011).
• Right to examine the case file and exhibits and In terms of economy, Taiwan is moving from
make copies by defense attorney (Article 33) agricultural economy to industrialized state. As it
• Right to state their opinions in the court took the United States 150 years to reach its pres-
(Article 271) ent living standard, Taiwan has achieved a similar
• Right to be noticed of the date of trial (Article level to the United States within 40 years (Chow
271) 2002). The impressively political development
• Right to appeal by requesting the prosecutor and economic growth inevitably triggered certain
(Article 344) trends in the context of victimization.
Song (2007) argued that those rights are not The first trend relates to an influx of immigra-
appropriate for crime victims, especially the right tions from Southeast Asia and Mainland China.
to state opinions in the court, comparing with the According to Government Information Office
victim impact statement in the United States. The (2011), starting in the late 1990s, an increasing
US Supreme Court first recognized the rights of number of marriages between ROC citizens and
crime victims to make a victim impact statement foreign nationals have further diversified the
during the sentencing phase of a criminal trial in nation’s ethnic makeup. The cross-border mar-
the case of Payne v. Tennessee 501 U.S. 808 riage accounted for one in every five weddings in
(1991). The victims and their family members 2009. As of October 2011, the population of
may present the written or oral information about “foreign spouse” is 456,814, with 67.1% from
the impact of the crime on them. Such statements mainland China (including Hong Kong and
provide a means for the court to refocus its atten- Macau) and 18.8% from Vietnam (National
tion, at least momentarily, on the human cost of Immigration Agency 2011). Those foreign
the crime. They also provide a way for the victim spouses account for about 2% of total population
to participate in the criminal justice process. In in Taiwan.
Taiwan, as the term indicated, victims’ presenta- Taiwan society (including the media and gov-
tions in the court are just “opinions,” which have ernment) has long been used “foreign spouse” to
no legal efficacy as that of victim impact call brides from Southeast Asia and Mainland
statement. China. As the population of foreign spouse
increased, scholars suggested using the term
“new resident” to replace “foreign spouse,”
22.4 Future Trends because the latter one has a sense of discrimina-
tion. Now the term “new resident” has been grad-
Taiwan has experienced a lot of political and eco- ually accepted by Taiwan society. The creation of
nomic advancement in the past decades. In terms R.O.C. Empathy and Care Association for New
of politics, Taiwan has been moving from author- Residents in 2009 exemplified this trend.
itarian government to democratic administration Yet new residents are still suffering many
since late 1980s. The Democratic Progressive social conflicts, including domestic violence
Party (DPP) was formed as a genuine opposition (Yu and Williams 2006). The official data
22 Victims of Crime in Taiwan 355
indicated that the ratio of foreign spouse as vic- 2011). This chapter also suggests victimolo-
tims of domestic violence is 240 per 100,000 gists examining the issue of self-protection in
populations in 2008. This figure is eight times depth in the future.
higher than that of national spouse (30 per
100,000 populations) in the same year (Hsu
2010). The actual problem could be even severer 22.5 Conclusion
because foreign spouses as domestic violence
victims are underreported for varied reasons The victim was a forgotten component in the
(Yeh 2006). Recent news squarely highlights criminal justice system until the 1970s. Now the
this issue, in which a 40-year-old taxi driver victimology is truly becoming an international
killed his 30-year-old Vietnamese wife and focus. Regardless of whether the criminal justice
dumped her body into a harbor for long-term system of a specific country is based on adver-
domestic conflicts (“Half-naked female body sarial traditions or inquisitorial jurisdictions,
case,” 2011). It is not the purpose of this chapter “they all share the ambition of reform on behalf
to examine why this type of victimization hap- of victims of crime” (Lehner-Zimmerer 2011,
pened. However, this chapter challenges crimi- p. 14). Although the Republic of China is not a
nologists to pay more attention of this type of member of the United Nations, criminologists in
victimization in the future. Taiwan have never self-isolated themselves from
Another trend relates to self-protection. Prior the global trend.
research indicated that fear of crime has prompted The topic of victimization was first introduced
crime victims in taking an active role in self-pro- to Taiwan in 1970. In the 1980s, Taiwan society
tection (Flaherty and Flaherty 1998). One mani- experienced a democratic movement, which
festation of this trend is the concept of target inspired the creation of victim’s groups focused
hardening (Clarke 1997, p. 17), making one’s on singular crimes, such as female protection
residence or business crime-proof through locks, (1987), drunken driving (1990), and severe vio-
bars, alarms, guards, or CCTV. According to the lent offense (1994). The CVPA was enacted in
2010 TACVS, many households adopted target 1998, and Association for Victims Support was
hardening approach after being victims of theft established in 1999 in line with the CVPA. The
by hiring security guards (increasing from 7.5 to first national criminal victimization survey was
11.7%), installing alarms (increasing from 7.9 to undertaken in 2000.
20.6%), fixing burglarproof bars (increasing from This chapter examined most recently nation-
66.4 to 73.2%), keeping dogs (increasing from wide crime victim surveys in Taiwan, including
21.4 to 26%), and mounting CCTV (increasing the 2010 TACVS and the CRC-NCCU’s biannual
from 25.7 to 40%). surveys in July 2009 and January 2010. Those
It can be concluded that burglarproof bars surveys looked at the individual and household
and CCTV are the most common self-protec- victimizations happened in 2009 and indicated
tion measures in Taiwan. However, the popular- that larceny was the most rampant offense, with
ity of CCTV caused another new type of prevalent rates ranging between 10.43 and 16.8%.
victimization—privacy impairment (“Theft- However, the victims of theft were least likely to
prevention CCTV,” 2011). In addition to that, report crime to the police. The main reasons for
some victims may take self-protection to its not reporting were “too petty to report” and “it
ultimate end by killing the offenders. For exam- won’t do anything good.” This chapter also exam-
ple, a 29-year-old Vietnamese wife recently ined commercial victimization in Taiwan based
stabbed her 58-year-old Taiwanese husband to on a study in 2005. It showed that shoplifting and
death because of long-term psychological abuse car/scooter theft were the most common crimes
by her husband for not allowing her to talk with happened in the commercial site. There was a dis-
other males (“Husband stabbed to death,” agreement about the loss of crime between private
356 H.M. Wang
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of the Crime Victims Compensation Act [Text in Criminology, 45(4), 449–468.
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Child Protection in Asia
23
Mari Hirayama
children at a quite early stage in their lives, such family matters” still strongly existed then. Most
as late teens; on the other hand, other women of the severe cases where children die or are
choose to marry and get pregnant when they are heavily injured are due to this “delay.” Therefore,
in their 30s. When teenagers get pregnant and in order to give the local government and the
cannot seek enough support from their family CGC the power to summon the parents and search
members, relatives, and community, they face a their dwellings when they were suspicious that
quite high risk in abusing children. children are abused, the Child Abuse Prevention
There was no specific law, other than the Child Act was amended for the third time, in 2007
Welfare Act (1947), to prevent and interact child (hereinafter the Act 2007). Under the Act 2007, if
abuse cases in Japan until 2000. the parents refuse to come to the CGC after their
The Child Abuse Prevention Act was enacted being summoned twice, family courts can order
in 2000. The Act defines child abuse as physical the staff of the CGC to search the houses with
abuse, psychological abuse, sexual abuse, and help from police officers. In this sense, the Act
neglect against children under 18 years. The Act 2007 gives greater power to CGC to intervene
first defines offender as parents and legal guard- with families where risk of child abuse is high.
ian of the children; abuse committed by someone Also, the article 12 of the Act 2007 gives prefec-
who lived with the children (e.g., ex-boyfriends) tural governors the power to give out restraining
could not be categorized as child abuse cases. In orders against abusive parents so that they cannot
order to fill this gap, the Act was amended in contact with their children in a children’s home
2004. The Child Abuse Act (2004) states that (jido-yogo-sisetsu).
those who lived with the children and do not have
any legal rights over them could be also catego- 23.2.1.2 Some Remaining Problems
rized as a child abuser. The Child Abuse Prevention Act Japan has been
One of the other important amendments was amended twice since its enactment in 2004. The
that the Act clearly defines what constitutes phys- system and scheme for preventing and interven-
ical abuse, and also stated that the situation where ing in child abuse have been gradually improv-
children had to observe the domestic violence ing. At the same time, the CGC and other welfare
between their parents could be also psychologi- agencies still hesitate to use their enforcing power
cal abuse. Under the old Act the definitions of to intervene with abusive families though the Act
psychological abuse were not clear, so it was allows them to do so. It is true that changing the
difficult to judge whether a reported case was widely believed cultural myth that “law should
defined as a psychological abuse case or not. not intrude in the private sphere” is very difficult.
Under the Act (2004), psychological abuse was In order to discover and prevent abuse problems
defined as “behaviors such as rejecting children as early as possible, we should not expect that
in an extreme manner, which gives children men- only CGC or other government agencies should
tal and physical harm.” Domestic Violence hap- be involved. Not only CGC but also other social
pening between the parents was also defined as welfare agencies, law enforcement, medical staff,
psychological abuse. It is easy to imagine that and so on need to cooperate well in order to pre-
children who have to observe the violence vent child abuse cases. Also, building community
between their parents are put under great agony, networks surrounding families with children
and these “forgotten victims” (Morita 2001) were often works the best to find out problems within
protected by the amendment in 2004. the family. The government should pay much
Even after the amendment in 2004, child abuse more attention to how to build such bonds.
problems were still facing many difficulties. The Also, what the Act is lacking is how to deal
biggest issue then was the CGC often hesitated to with problems in the aftermath. There are very
inquire and intervene with families even though few programs and schemes for reeducation of
they did not doubt abuse cases happened. The abusive parents. It is sometimes necessary to take
norm that “laws should not concern itself with efforts to reintegrate abused children and their
23 Child Protection in Asia 361
parents in order that there would be no risk for such as domestic violence; therefore comprehen-
the children to be re-victimized. sive responses to violence in many forms maybe
The Japanese Civil Code amended its provi- important.
sion regarding child custody rights in 2011 so
that these rights can be suspended for up to a
given number of years. Before this amendment, 23.3 Commercial Sexual
these rights could be deprived; if there was severe Exploitation of Children
abuse, however, judges were reluctant to do so as
it would deprive the possibility for restoration of The market for commercial sexual exploitation of
the family. Under the amended provision, efforts children now spreads across the world. Also,
for restoration can be taken, while these rights are recent developments in information and commu-
suspended. nication technology have made this crime more
widely spread around the world, and what is
worse, it is difficult to trace. Unfortunately, Asian
23.2.2 Child Abuse in South Korea countries are the big markets for sexual exploita-
tion of children, and attract many pedophiles
Because of the strong influence of Confucianism, from all over the world. Commercial sexual
it had been very difficult for law to intervene in exploitation of children (hereinafter CSEC) takes
the private sphere in South Korea, which means in many forms, such as child pornography, sexual
that many child abuse cases were hidden. On the trafficking, child prostitution, and so on. CSEC
other hand, the rapid economic and social often are committed in a form of an organized
growth since 1960s made South Korea more crime. Organized crime groups find CSEC as a
concerned about human rights of more vulnera- way of obtaining profits.
ble people such as women and children. In 2000, Children who are exploited sexually suffer
there was a first national survey on child abuse serious injury both physically and mentally.
in South Korea. It showed that over 30% of chil- Many of these children are suffering from serious
dren had been abused. The recent survey by the sexually transmitted diseases such as HIV. Most
Department of Health and Welfare showed that children who are victimized in CSEC are from
the number of abused children in 2009 was 2.3 poor families and communities. Just enacting
times as that in 2001. It is also true in South laws and punishing offenders are not enough to
Korea that child abuse is becoming a major respond to CSEC problems. Not only govern-
political issue. ment agencies but also NGO, NPO, and private
In South Korea, the law to prevent family vio- companies must cooperate to deal with underly-
lence was enacted earlier than in other Asian ing problems of poverty, education, and social
countries. In 1997 two laws, The Special Act for welfare.
Punishment of Family Violence and The Act for
Prevention of family Violence and Protection of
Victims, were established. The former law not 23.3.1 Child Pornography
only states probation and community order but
also provides various treatment programs for It is difficult to define Child Pornography. Child
offenders for restoration of the family. The latter Pornography can be defined as films, magazines,
law focussed on victims protection, such as sup- and photos where improper nudity of child or
port system for children in shelters. sexual activities involving child are depicted.
One of the unique points of laws for child With the rapid growth of electronic communica-
abuse in South Korea is that they aim to respond tions, such as Internet, Web mails, chatting, and
to not only child abuse problems but also broader social service network, child pornography can be
issues as family violence. When child abuse hap- delivered and distributed in various forms, and
pens in a family, they often have another problem they are also easy to be exchanged from one
362 M. Hirayama
country to other countries. Therefore a global children. On the other hand, however, as it is
definition of sexual abuse against children is nec- difficult to define what constitutes “child pornog-
essary. Pedophilia groups who produce and dis- raphy,” criminalizing and punishing mere posses-
tribute child pornography are often called sex sion may give law enforcement a diffuse and
rings. Child Pornography must be criminalized wide authority to arrest, search, and seize mate-
because (1) children are abused during produc- rial from citizens.
tion of child pornography, which hurts the child In Japan, there is another problem such as
both physically and mentally, and (2) watching “Child Pornography of non-real Children.” This
child pornography may trigger potential child refers to comics and animations where nudity
molesters to commit actual crimes against and sexual intercourse with child characters
children. (which do not really exist) are depicted.
According to the 2008 report by the World Sometimes such images are called “pseudo-pho-
Congress against CSEC, “While impossible to tographs.” Even though no children are actually
obtain accurate data, a perusal of the child por- exploited or harmed in these comics, some claim
nography readily available on the international that they must be prohibited as they exhibit a
market indicates that a significant number of chil- pedophilic culture. At the same time, if the images
dren are being sexually exploited through this are not of real children, it is difficult to define
medium.” (the World Congress against what “child pornography” is. In 2010, the
Commercial Sexual Exploitation of Children). Governor of Tokyo tried to submit a draft of an
Most countries have struggled to criminalize ordinance to restrict these comics where images
and prevent Child pornography. The 87th Session of “non-real children” are depicted; however, no
of General Conference of the International Labor regulation has been realized yet.
Organization in Geneva in 1999 adopted C 182
Worst Forms of Child Labor Convention 1999. In
this convention, child pornography is categorized 23.3.2 Child Trafficking
as one of the work forms of child labor. The and Prostitution
Convention is ratified by many Asian countries
such as Malaysia, Japan, Singapore, Republic of In 2008, one very shocking movie, entitled “Children
Korea, Thailand, China, and so on. in the Darkness” (directed by J. Sakamoto), was
Also, the Protocols to the UN Convention on released in Japan. It involved child trafficking and
the Rights of the Child on the Sale of Children, prostitution in Thailand. Most of these exploited
Child Prostitution and Child Pornography are children are abandoned street children or from poor
ratified by 118 countries including many Asian families. They are sometimes “sold” to rich people
countries. The Protocols demand ratifying coun- from Western countries and other Asian countries.
tries to criminalize any behaviors relating to child In this sense, these children trafficked are akin to
pornography such as production, distribution, “slaves” in the modern era. As in these crimes, both
import/export and selling, and possession for offenders and victims can be spread all over the
these purposes. Many of these ratifying countries world, it is very important to control and prosecute
have their own domestic law to criminalize and these crimes within a universal jurisdiction.
prevent child pornography, such as “Act on There have been many Conventions and
Punishment of Activities Relating to Child Protocols at government level to combat human
Prostitution and Child Pornography, and the trafficking.
Protection of Children” (Japan, 1999). Optional Protocol to the Convention on the
One of the issues here is whether mere posses- Rights of the Child on the Sale of Children,
sion of child pornography should be criminalized Child Prostitution and Child Pornography
or not. Even mere possession may motivate requires State Parties to take suitable measures
potential pedophiles to commit crime against to submit the case to its competent authorities
23 Child Protection in Asia 363
for the purpose of prosecution, regardless of Each country has its own way of responding to
nationalities of offenders or victims, and the sex crime committed against children by repeat
place where a crime had been committed. sex offenders. I now look at two different types of
In 2002, the South Asian Association for responses, namely, in Japan and South Korea.
Regional Cooperation (SAARC) adopted the
Convention on Trafficking in Women and
Children. Under the Convention, SAARC mem- 23.3.4 Tracking System for Child
ber States corporate not only to prevent and inter- Molesters in Japan
vene in human trafficking of children and women
but also to provide sufficient support to victims In November 2004, a very similar case as Megan
for their recovery. Kanka case happened in Nara Prefecture, Japan
Also, ASEAN adopted the ASEAN Declaration (hereinafter the Nara Case). In the Nara Case, a
against Trafficking in Persons Particularly 7-year-old girl was abducted. While missing, her
Women and Children in 2004 in Vientiane, Lao family received an e-mail containing photographs
People’s Democratic Republic. The aim of the depicting the girl’s dead body, and her body was
declaration is to establish regional networks to discovered the next day. The police could not find
prevent and combat trafficking in women and an offender for a while, and what was worse, the
children in ASEAN countries. The declaration family received blackmail threats from the
also puts focus on providing support and treating offender in which he claimed that he was now
with respect victims either in receiving/recipient targeting the family’s other daughter.
countries, and repatriating the victims promptly At the end of December, more than a month
to their own countries. after the kidnapping, a 36-year-old newspaper
delivery man, living in the same prefecture as the
victim, was arrested.
23.3.3 Child as Victims of Sexual Crime As it turned out, the man had a record of mul-
tiple sex offenses. He had been arrested a few
Criminal justice policy to prevent sex crime times for committing sex crimes, and for the last
against children often becomes irrational and crime he had served a 3-year sentence in prison.
overly radical. Crimes against the most vulner- The whole nation was put into fear and people
able people who cannot defend their own selves began to doubt the justice system and the correc-
trigger moral panic in society. In some jurisdic- tional system. A single case changed the crime
tions, laws to require released sex offenders to justice policy for sex offenders greatly. Because
register at the law enforcement agencies and to of the Nara Case, cognitive behavior programs
notify the information to neighbors or the for sex offenders in prisons have become manda-
broader community are enacted. The most well- tory since 2006. Also, recidivism prevention pro-
known example of these laws is Megan’s Law; grmas became compulsory while they were on
the US Megan’s Law was enacted named after probation that year. There was an outcry in
Megan Kanka, a 7-year-old girl who had been Japanese society, claiming that Japan should
molested and murdered by a sex offender who enact law like Megan’s Law. However, the
lived in the neighborhood. It was only after the Ministry of Justice adopted a Surveillance System
death of the girl when her parents and the com- for Sex Offenders by the police (hereinafter the
munity came to know that the offender had two surveillance system). In this tracking system,
previous convictions for sex crime and that he when a sex offender who committed crime against
had been released from the prison for good-time victims under 13 is released from a prison, his
release. The parents and the community then information is released to the National Police
claimed that they needed a law to let the com- Agency (the national headquarter of the police).
munity know when a sex offender is released, Then NPA releases the information to prefectural
namely, Megan’s Law. police headquarters where the sex offender lives.
364 M. Hirayama
Then information is delivered to a local police 23.3.5 The Crime Justice Policy for
station closest to the residence of the sex offender. Child Molesters in South Korea:
At the local police station, recidivism prevention Supervision and Information
officers are assigned to check the residence of the Disclosure System
offender. In the surveillance system, the police do
not use any GPS or special supervision program; Since 2000, South Korea illustrates a very radical
they just check the residence occasionally. Sex attitude to sex crime where children are victim-
offenders are supervised for at least 5 years after ized. Actually, the USA and South Korea are the
their being released if they have one prior convic- only two countries which have a law to allow
tion. For those who have more than two convic- release of information of sex offenders to the
tions, they are supervised for at least 10 years. community. In 2000, South Korea enacted “Act
The system has not been evaluated so far (Harada of Sexual Protection of Adolescence.” The main
2009). But some statistics reveal that as of May background to this legislation was the increasing
2010, 740 sex offenders had been put under the number of prostitution cases involving young
system for 5 years, and 200 out of them were girls. In South Korea, though Confucianism had
unable to be located (27%). given strong moral guidance toward sex, young
Even though this was a very similar case as people became more lenient about sex since
Megan Kanka case, Japan decided to reserve 1990, leading to increasing number of prostitu-
information on sex offenders only for the police. tion cases by teenagers. This prostitution was
There is an interesting survey on people’s attitude quite different from traditional forms of child
toward information of sex offenders. In March prostitution where children are abducted and
2005, the Nomura Research Institute in Japan forced to work; on the contrary, quite many teen-
surveyed on public attitude toward safety, and agers have sex with adults for pocket money. Yet,
asked “to which extent do you want information of course in terms of power, it is still the same;
on released sex offenders ”; 3.7% of the respon- adults take advantage of minors because these
dents answered that information must not be young girls often lack appropriate knowledge and
released to the police, 44.2% said that the infor- information. Under the Act of Sexual Protection,
mation should be released to the police, 17.9% South Korea introduced the system to disclose
said that the information should be disclosed to the information on offenders who commit violent
the parties concerned with public securities, sex crime or sexually exploit children under 19
15.9% agreed that the information should be dis- years old. Under this disclosure system, name,
closed to the public on their request, and only age, job, address, and description of offenders are
1.3% answered that the information should be disclosed via an official announcement report or
disclosed via the Internet (N = 1,180). the Internet. If the information is disclosed by an
The most interesting result of this survey was official announcement report, the information
that more than 40% of respondents said, “We do shall be posted for 2 months, and if by the Internet
not want the information on sex offenders for 6 months. Their disclosure system is similar
released into the community as long as police to Megan’s Law; however, one of the biggest dif-
do their job well.” ferences is they do not disclose the photos of
The response after the Nara case, even though offenders. There has been much opposition to the
it was very similar to Megan Kanka case, was disclosure system, because in South Korea the
quite different from that after the Megan case. It society puts much focus on shaming, and this
seems that Japanese society trusts more in law notification system impacts heavily on privacy of
enforcement authority than the US society. But these offenders. Also, as they do not disclose
the question here is whether it is quite the same photos of the offenders, innocent people were
response in other Asian countries. South Korea mistakenly taken as sex offenders just because
has shown a quite different response. they have same or similar name as the offenders
23 Child Protection in Asia 365
who are disclosed. However, to protect (innocent) Sex offenders who fail to register may be pun-
children, the system has been supported by the ished by up to 1 year in prison and a fine up to
majority of the society in South Korea so far. five million Won (approximately 5 thousand US
The disclosure system, however, has not been dollars).
seemed to work well in reducing the fear within Also, in September 2008, “Electronic
society. The fear against crime where children Monitoring System for Specific Sexual Violent
are victimized has grown over the years. The Offenders Act” was enacted in South Korea”
Nae-Yeong case in 2008 is worth noting. Nae- (hereinafter Electronic Monitoring Act). Under
Yeong, an 8-year-old girl, was brutally raped by a article 5 of the Electronic Monitoring Act, offend-
57-year-old man on her way to the school. The ers who are ordered to wear electronic device
offender tortured the girl for hours, and she had system are:
to have 8 hours surgery. She lost 80% of her colon 1. Those who have more than two previous
and genital organs. It turned out that the offender convictions of sex crimes and have served
had a prior record of rape. The tragedy shocked more than 3 years in prison and reoffend
the whole nation and citizens posted the offend- within 5 years
er’s name, photo, and other details on the Internet. 2. Those who are ordered to wear GPS and
In a single day, more than 200,000 people signed reoffend
the petition to seek harsher punishment. 3. Those who have more than two previous sex
Politically, the Lee administration also was convictions and habitually offend
willing to enact further protection from violent 4. Those who commit crimes against victims
sex criminals. The outcry for preventing sex under 13 years old
crime against children in South Korea was gain- When prosecutors determine these above cir-
ing momentum, which made South Korea the cumstances, they apply to courts, and courts can
first nation in Asia which has chemical castration order these offenders to wear GPS on their anklet
introduced in 2011. The law gives judges the for up to 10 years (article 9).
power to order sex offenders who have attacked Probation officers can preserve information
children under the age of 16 to undergo a medical obtained by these electronic monitoring system
procedure, widely known as chemical castration; and make use of them for treatment programs for
the effects of such chemical procedures can last preventing offenders’ recidivism. The police,
for up to 15 years. also, have the access to such information for
Also the society’s outcry after the Ne-Yong investigation when sex crime occurs in the com-
case amended “Child and teen Protection Law” munity. Such information will be deleted after 5
to extend the period sex offenders must register years when these orders are completed.
from 5 years to 10 years. The information If offenders break GPC devices, they face
notification system was also further developed. more than 1 year incarceration, and if they break
In July 2011, the Ministry of Gender Equality restraining orders or fail to attend treatment pro-
and Family created “Registration and Information grams, they face up to 3 years incarceration and/
System for Sex Attackers of Teenagers,” and or up to 10 billion Won fine (approximately 100
under the system children, their parents, and thousand US dollars).
school authorities have access to the information Because of the influence of Confucianism,
on sex offenders obtained by the police. Prior to South Korea has put much value on the norm of
the new system, such information included only shame. If a person commits crime, especially a
general location of offenders (city, county, and most disgusting crime such as child molestation,
ward) and no photo of them. Under the new sys- not only that person but also his or her family is
tem, now name, age, job information, specific also excluded from a society. (These tendencies
address, and photo of an offender are published. may be stronger in Asian countries than western
Information is viewable only from certain com- countries.) The fact South Korea introduced
puter terminals equipped at the police stations. information disclosure system may exclude
366 M. Hirayama
offenders and their families from the community, (RJ) approach such as Family Group Conferences
which end up depriving them of the opportunities (FGC) method may be workable for some child
for rehabilitation. Further analysis will be needed abuse cases. In New Zealand, one of the leading
to assess whether these radical policies actually countries which has a formal RJ system, use FGC
prevent recidivism. where victim, offender, and their (extended) fam-
ily members seek the way for restoration of fam-
ily for child abuse cases. In Asian countries, there
23.4 Conclusion are no established RJ programs for child abuse
cases at this stage; however, RJ approach may be
Child abuse can take place in various forms and appropriate for some cases such as restoring fam-
is deeply rooted in the cultural and economic ily and reeducating offenders.
environment of the society. These problems espe- On the other hand, criminal justice policy for
cially are connected with poverty and lack of the most vulnerable group can often become too
education and the social welfare system radical. Disclosing offenders’ information to the
(Whitebook on Child Poverty Editorial Committee community may deprive opportunities and rights
2009). It is very important, therefore, to provide for them, and exclude them from the community.
good welfare system and support parents and Just excluding offenders and providing no sup-
family in order to reduce abuse problems rather port for them may be more dangerous, as it will
than punishing abusers. Also, as the role of the be difficult to rehabilitate those who have lost
community is important to detect and prevent bonds to the society.
child abuse, how to rebuild bonds within com-
munity should pe put much more focus on.
Many researchers have shown that those who References
have been abused may be more likely to be
offended against others, and become criminals Harada, M. (2009). Kodomo Taisho Bouryoku Teki
when they grow up. Therefore it is very impor- Seihanzai Syussyo Sya ni Taisuru Saihan Boshi Sochi
Seido no Minaoshi tou [reforming relapse prevention
tant to prevent and intervene in child abuse in system for violent sex offenders against children after
order to reduce future crimes. their being released]. Keisatsu Koron, 66(5), 12–16.
As children often have little voice in the soci- Morita, Y. (2001). Domestic Violence, Aiga Bouryoku ni
ety, their tragedies are often hidden. It is very Kawaru Toki [Domestic Violence, When Love
Changes into Violence]. Shogakukan Publication.
important not only for professionals or the author- Nishizawa, T. (2007). Kodomo Gyakutai [child abuse].
ity but also for the community to discover and Tokyo: Kodansha Publications.
prevent child abuse. Also, more outreach pro- Neary, I. (2002). Human rights in Japan, South Korea,
grams for family are needed so that those fami- and Taiwan. London: Routledge Advances in Asia-
Pacific Studies.
lies who seek help and information can have Whitebook on Child Poverty Editorial Committee. (2009).
more access to support. Kodomono Hinkon Hakusyo [Whitebook on Child
Child abuse is a unique crime, in a sense vic- Poverty]. Tokyo: Akashi Publication.
tims still seek connection to the offender after Yokohama Conference Report. (2002). Kodomo Kaishun
Kodomo Poruno ni No!: Kagai Koku Nihon kara Sekai
being victimized (as still family). Therefore, res- he [Saying No to Child Sexual Exploitation and
toration of the family should be also considered Pornography: Message to the World from Japan as
in some cases. In doing so, a Restorative Justice Offender], Tokyo: Tokyo International Child Center
Victims of Domestic Violence
in India: Do They Have Rights? 24
Sesha Kethineni and Murugesan Srinivasan
by the women seers (known as Rishikas and of women’s political, social, and economic rights
Brahmavadinis) (Tripathy 1998, cited in Vijaya included Susan B. Anthony, a prominent US civil
2004). It is stated that women had a voice in rights leader and an activist of women’s rights
choosing their partners, were educated, and held movement, and Clara Jetkin, an influential
prominent positions in social and religious gath- German socialist politician and a crusader for
erings. In Vedic society, women distinguished women’s rights. The women of New York City
themselves in science and learning and were con- marched on March 8, 1908, demanding shorter
sidered intellectual companions, friends, and liv- working hours, better pay, voting rights, and an
ing helpers in the life journey of their partners. In end to child labor.
addition, monogamy was the rule at that time. In India, the issue of women’s rights was
Remarriage of widows was permitted. Overall, in voiced by Mahatma Gandhi and gained the sup-
the Vedic age, Hindu women were honored and port of many women activists (Tharakan and
respected (Kumari 1994).With the passage of Tharakan 1975). Such a voice was reflected in a
time, however, the status of women gradually resolution adopted by the Indian National
deteriorated. For instance, in the Smriti period, Congress in 1931, when it made commitments to
the most significant lawmaker was Manu. defend civil rights and economic freedom. In
According to Manu, a woman in her childhood 1940, the Indian National Planning Committee
must be protected by her father; in her youth, she established a subcommittee to review the social,
must be protected by her husband; when she is economic, and legal status of women and to find
older, she must be protected by her son. Manu’s measures to create equality of status and opportu-
social codes and sanctions are reflected in these nity (Forbes and Forbes 1996). In 1927, Maharani
dictums. Although the laws of Manu were com- Chimanabhai Gaickward of Baroda organized
piled between 200 b.c.e. and 200 c.e., the day-to- the first All India Women’s Educational
day life of Hindu women is still influenced by the Conference. The All India Women’s Conference
laws of Manu. The period that followed Manu’s held in 1945 discussed various types of discrimi-
reign put further restrictions on women. For nation faced by Hindu women and the Conference
example, the practice of child marriages, Sati prepared a Charter of Indian Women’s Rights.
(self-immolation of a woman following her hus- After India achieved independence from the
band’s death), and a ban on widows remarrying British in 1947, the country adopted a socialist
were practiced in some parts of India. With the philosophy and passed several laws intended to
Muslim conquest of India, the practice of wear- protect the rights of women.
ing veils became common among Muslim On January 26, 1950, the Constitution of India
women. During the colonial era, notable Indian was ratified. It not only granted equality to women
social reformers stood firm against social bigotry, but also encouraged states to adopt measures of
orthodoxy, idol worship, and even encouraged positive discrimination, that is, to obliterate social
women and men to seek Western/English educa- and other disabilities and deprivations. Preferential
tions. Raja Ram Mohan Roy (1772–1833 c.e.), treatment for women is expressed in Article
one of the Indian social reformers, fought for the 15(3). This was “a warrant for affirmative state
abolition of Sati. The efforts of other reformers action” going beyond formal equal protection of
resulted in the remarriage of widows and the pro- the laws provided under Article 14 (Roy and
hibition of child marriages and bigamy. In 1929, Tilak 1996). Although Article 15(1) prohibits
the minimum age of marriage for girls was set at discrimination against any citizen in India on the
14. Under the British rule, some significant basis of religion, race, caste, sex, or place of birth,
advances were made in women’s rights, includ- Article 15(3) states that nothing in this article
ing proprietary and inheritance rights. Indeed, shall prevent the state from making any special
similar reform movements emerged all over the provisions for women and children. In other
world during the mid-nineteenth century. Some words, in a welfare state, the welfare of children
notable reformers who raised people’s awareness and women is of prime importance. Hence, any
24 Victims of Domestic Violence in India: Do They Have Rights? 369
special provision for their protection or empow- special and local laws (SLL). There are provi-
erment would not offend against the guarantee of sions in the IPC to deal with offenses such as rape
nondiscrimination in Article 15(1) (Basu 2003). (Section 376); kidnapping and abduction for
Despite these constitutional guarantees, however, specified purposes (Section 363–373); homicide
women are still subjected to various forms of for dowry, dowry deaths, or attempted dowry
abuse and exploitation. death (Section 302/304B); torture (both mental
With the economic development and progress and physical) (Section 498a); molestation
of the last three decades, large number of Indian (Section 354); sexual harassment (Section 509);
women in urban areas have entered the work- and importation of girls (up to 21 years of age)
force. And, with economic independence, one (Section 366b). Molestation includes assaulting a
would expect equality of women in all spheres of woman or using criminal force on her with the
life; however, progress has been slow. Studies intention of outraging her modesty (Ranchhoddas
have reported that abuse against working women and Thakore 1987).
and violence against young widows have been on The IPC, a major criminal code covering all
the rise (Kumar 2010). In addition, women in substantive laws, was enacted in the year 1860
India face unique forms of violence such as and, as a result, lacks provisions to deal with cer-
“dowry deaths.”1 tain newer types of crimes against women.
Therefore, new laws (i.e., SLL) were enacted by
the government. A special law is a law that cov-
24.3 Trends in Crimes Against ers a particular subject matter such as dowry,
Women in India whereas a local law applies to a particular state
of India (i.e., the Tamil Nadu Police Act). The
In India, crimes against women are broadly cate- major SLL that deal with specific crimes against
gorized into two types: (1) crimes under the women are Immoral Traffic (Prevention Act)
Indian Penal Code (IPC) and (2) crimes under (1956), the Dowry Prohibition Act (1961), the
Indecent Representation of Women (Prohibition)
1 Act (1986), and the Commission of Sati
“Dowry” is an ancient cultural practice in many Indian
communities. It involves the bride’s family giving prop- (Prevention) Act (1987).
erty or valuables to the bridegroom or his family in con- Table 24.1 shows the total incidence of IPC
sideration of marriage. A dowry death, also known as and SLL crimes against women for the years
bride burning, is a unique form of violence experienced by
2005–2009. It includes the growth rate of IPC
Indian women where young brides are either murdered or
driven to suicide by torture or harassment by husbands and SLL crimes for the same period. It should be
and/or in-laws. noted that there was a steady increase in the
370 S. Kethineni and M. Srinivasan
Table 24.2 Crimes under the IPC: Headwise incidence of crimes against women, 2005–2009, and the growth rate
(by percent)
Year
S. no. Crime head 2005 2006 2007 2008 2009
1 Rape 18,359 19,348 (5.4%) 20,737 (7.2%) 21,467 (3.5%) 21,397 (−0.3%)
2 Kidnapping and 15,750 17,414 (10.6%) 20,416 (17.2%) 22,939 (12.4%) 25,741 (12.2%)
abduction
3 Dowry death 6,787 7,618 (12.2%) 8,093 (6.2%) 8,172 (1%) 8,383 (2.6%)
4 Torture 58,319 63,128 (8.2%) 75,930 (20.3%) 81,344 (7.1%) 89,546 (10.1%)
5 Molestation 34,175 36,617 (7.1%) 38,734 (5.7%) 40,413 (4.3%) 38,711 (–4.2%)
6 Sexual harassment 9,984 9,966 (–0.2%) 10,950 (9.9%) 12,214 (11.5%) 11,009 (–9.9%)
7 Importation of girls 149 67 (–55.0%) 61 (–9.0%) 67 (9.8%) 48 (–28.4%)
(Source: National Crime Records Bureau 2011)
Table 24.3 Crimes under the SLL: Headwise incidence of crimes against women, 2005–2009, and the growth rate
(by percent)
Year
S. no. Crime head 2005 2006 2007 2008 2009
1 Rape 1 0 (–100%) 0 (0%) 1 (0%) 0 (–100%)
2 Kidnapping and abduction 5,908 4,541 (–23.1%) 3,568 (–21.4) 2,659 (–25.5%) 2,474 (–7.0%)
3 Indecent representation 2,917 1,562 (–46.5%) 1,200 (–23.2) 1,025 (–14.6%) 845 (–17.6%)
of women (Prohibition
Act 1986)
4 Dowry Prohibition Act 3,204 4,504 (40.6%) 5,623 (24.8) 5,555 (–1.2%) 5,650 (1.7%)
(1961)
(Source: National Crime Records Bureau 2011)
number of IPC crimes against women during this under the Dowry Prohibition Act (1961). In 2006,
period. Of the 5-year crime data, 2007 showed a significant increase (40.6%) was reported over
the highest increase in IPC offenses (16.5%) the previous year; in 2007, there was an increase of
compared to 2009 (4.4%). In contrast, SLL 24.8% over that in 2006. From 2008, the increases
crimes against women have been decreasing. are less noticeable (see Table 24.3).
The incidence of various types of IPC crimes In 2009, a total of 203,804 crimes against
against women, including their growth rates, is women were registered in all 28 states and 7
given in Table 24.2. The offense of rape increased Union territories. Table 24.4 provides details
between 2005 and 2008, but there was a marginal relating to the states and Union territories (i.e.,
decrease in the number of rape cases in 2009. The areas that are under direct federal/central govern-
number of dowry deaths steadily increased ment rule) and their contribution to the total inci-
between 2005 and 2009. dence of crimes against women. Some of the
As stated previously, there are four special laws states where the incidences of crime against
that are gender specific. The incidence of crimes women are significantly higher include Andhra
under such laws and their growth rate are given in Pradesh (12.5%), Uttar Pradesh (11.4%), and
Table 24.3. In 2005, 3,204 cases were registered West Bengal (11.4%).
24 Victims of Domestic Violence in India: Do They Have Rights? 371
Table 24.4 Incidence crimes committed against women in states/union territories (UT),
2009, and the percentage of total crimes against women (by percent)
S. no. States/union territories Incidence (n = 203,804) Contribution (%)
1 Andhra Pradesh 25,569 12.5
2 Assam 9,721 4.8
3 Bihar 8,803 4.3
4 Delhi (UT) 4,251 2.1
5 Gujarat 8,009 3.9
6 Karnataka 7,852 3.9
7 Kerala 8,049 3.9
8 Madhya Pradesh 15,827 7.8
9 Maharashtra 15,048 7.4
10 Orissa 8,120 4.0
11 Rajasthan 17,316 8.5
12 Tamil Nadu 6,051 3.0
13 Uttar Pradesh 23,254 11.4
14 West Bengal 23,307 11.4
(Source: National Crime Records Bureau 2011); n total number of incidents
relatives. It is also revealed that only 60% of the stances within 7 years of the marriage, and it is
women could use money as they wished and one shown that the victim was subjected to cruelty or
out of every five women had experienced domes- harassment by her husband or his family, it is
tic violence from the age of 15 onward. The per- considered a dowry death. In such cases, the hus-
petrators of domestic violence, by and large, are band and/or his family would be deemed respon-
men, particularly marital partners. One of the sible for her death. The punishment for such a
root causes for the aggressive behavior of marital crime is imprisonment for 7 years or “life” (gen-
partners against women was the influence of erally 20 years). The inclusion of dowry death in
drugs or alcohol. the IPC necessitated changes in the evidentiary
As far as the reporting behavior of the victims standards for dowry death cases. Thus, a section
of domestic violence is concerned, at one time (113b) was added to the Indian Evidence Act
many victims would not file complaints because (1872), which shifted the burden of proof from
they feared that such complaints might create a the prosecution to the accused in dowry death
hostile environment at their homes. As a result, cases.
they often suffered violence in silence (Sunny Under the Dowry Prohibition Act, there are
2003). Public awareness of domestic violence three main forms of offenses: giving or taking a
and women’s fight for equality and social justice dowry (Section 3[1], demanding a dowry [Section
prompted the international community to recog- 4]), and receiving dowry for the benefit of the
nize violence against women as an important wife or her heirs (Section 6[1]). Section 3(1)
social issue. India recognized the problem and states that anyone who takes or aids in the giving
took measures to address them through the revi- or taking of dowry shall be punished with impris-
sion of old laws and the drafting of new ones to onment for a term of not less than 5 years and fine
criminalize offenders and provide protection to of not less than 15,000 rupees or the value of the
women. For example, the IPC, which was origi- dowry, whichever is greater. Section 4 stipulates
nally passed in 1860, was amended in 1983 and a punishment for anyone demanding a dowry
again in 1986; the Dowry Prohibition Act was from the parents or relatives of the bride or bride-
amended in 1984 and 1986. The amendments to groom of at least 6 months of imprisonment,
the IPC included definitions of specific offenses which may be extended to 2 years with a fine of
such as marital violence and abuse. Under Section 10,000 rupees. Finally, Section 6 states that if a
498a of the IPC, domestic violence is a cogniza- dowry is received by anyone other than the bride,
ble (i.e., felony) offense and police officers may it should be transferred to the bride within a
arrest the perpetrator without a warrant. For specified period of time. Despite these legislative
example, if the victim complains to the police changes, however, women in India were not
that she was treated cruelly by her husband or accorded the protections enumerated in various
relatives, the police must take action. The term international accords such as the DEVAW, the
“cruelty” not only covers serious injury, bodily Vienna Accord of 1994 (Office of the United
harm, or danger to life, limb, or physical health Nations High Commissioner of Human Rights
but also danger to mental health, harassment, and 1996), or the Beijing Declaration (1995) (UN
emotional torture through verbal abuse. The term 1995a).
“harassment” covers acts such as coercing the The DEVAW defines the concept of violence
wife or her relatives, or demanding a dowry in the against women comprehensively. According to
form of property or valuables by the husband or the Declaration, violence against women is “any
his family (Ranchhoddas and Thakore 1987). act of gender-based violence that results in, or is
More important, Section 304b, which was likely to result in, physical, sexual or psychologi-
added to the IPC, defines the circumstances under cal harm or suffering to women, including threats
which a death is considered “dowry death.” It of such acts, coercion or arbitrary deprivation of
states that if the death of a woman is caused by liberty, whether occurring in public or in private
burns, bodily injury, or other unusual circum- life” (UN 1993, Article 1). Article 3 of the
24 Victims of Domestic Violence in India: Do They Have Rights? 373
Declaration specifies that women are entitled to of human rights, ensuring that women are treated
the following rights: equally in all spheres of life has taken on interna-
1. The right to life tional importance. But in the Indian context,
2. The right to equality even after the adoption of the aforementioned
3. The right to liberty and security of person UN Declaration, the issue has not received the
4. The right to equal protection under the law attention it deserved. This was perhaps due to
5. The right to be free from all forms of deep-rooted cultural norms and patriarchal val-
discrimination ues that view domestic violence as private family
6. The right to the highest standard attainable of matter that should be settled within the home,
physical and mental health without any need for “unnecessary” external
7. The right to just and favorable conditions of intervention (Lawyers Collective Women’s
work Rights Initiative 2009). Even in India, however,
8. The right not to be subjected to torture, or domestic violence has gradually been recognized
other cruel, inhuman, or degrading treatment as a serious human rights issue. But there was
or punishment (UN 1993) neither a comprehensive law nor a clear legal
Moreover, the Declaration encouraged states definition of domestic violence until 2005. Of
to condemn and abolish all forms of violence course, violence against women in the family
against women. setting/within marriages is acknowledged and
The Vienna Accord also recognized the human remedies are available in the form of civil laws
rights of women and female children as inalien- (e.g., those dealing with divorce). In addition,
able, integral, and indivisible parts of human Section 498a of the IPC deals with cruelty by
rights. It insisted on full and equal participation husbands and relatives. Even so, these limited
of women in political, civil, economic, social, legal remedies are available only to married
and cultural spheres at regional, national, and women. For victims of violence in other domes-
international levels. It reiterated that any gender- tic relationship, such as mothers, daughters, and
based discrimination due to cultural prejudice or women in live-in relationships, Section 498a of
otherwise must be eliminated (Office of the UN the IPC does not provide any remedy. It should
High Commissioner on Human Rights 1996). also be noted that marriages in India are solem-
The Beijing Declaration was intended to nized under personal/customary laws. And not
advance women’s equality and development. all marriages are registered because registering
Specifically, it was intended to accomplish the marriage is not compulsory. It was against this
goals enumerated in the Charter of the United background that the Protection of Women from
Nations, the Universal Declaration of Human Domestic Violence Act (PWDVA) came into
Rights, the Convention on the Elimination of All force on October 26, 2006.
Forms of Discrimination against Women, the
Convention on the Rights of the Child, DEVAW,
and the Declaration on the Right to Development 24.5 Salient Features of the
(UN 1995b). It recognizes the human rights of Protection of Women from
women and of female children as inalienable Domestic Violence Act
rights. Moreover, it states that the empowerment
of women can be achieved only if women are The PWDVA (2005) intended to protect the rights
given full participation in all spheres of society, of women as guaranteed in the Constitution of
including access to power, involvement in deci- India. Hence, the PWDVA recognizes domestic
sion-making process, and live their lives in accor- violence as a human rights issue. The PWDVA is
dance with their own aspirations (UN 1995b). primarily a civil law but some elements of crimi-
As a result of the recognition of violence nal law were incorporated into it. In other words,
against women in the private domain and that the appropriate remedy under the PWDVA is
domestic violence is an unacceptable violation often civil in nature but when there is a violation
374 S. Kethineni and M. Srinivasan
of civil order by the perpetrator, the appropriate The PWDVA grants the victim of domestic
remedy could be punishment. violence a number of reliefs: an order of protec-
Concerning the definition of domestic violence tion (Section 18); a residence order (Section 19);
in the PWDVA, it should be noted that it is the a custody order (Section 21); a compensation
most comprehensive definition of domestic vio- order (Section 22); and interim and ex parte
lence under Indian law, and it includes all forms orders (Section 23).
of abuse and violence committed against women Under the PWDVA, the victim/aggrieved per-
in a family setting. To facilitate access to justice, son has the right to reside in a shared household
the PWDVA has provisions for new authorities, but this right does not confer a right of ownership
including a protection officer (PO) as the key over the property. The right to reside is consid-
implementing officer. In each district, the respec- ered a procedural safeguard against dispossession
tive state government may appoint POs as it may of the aggrieved person. In India, the male mem-
consider necessary. The state government shall ber of a marriage is traditionally given possession
also notify the area(s) within which a PO shall of the premises. Thus, it is relatively easy for a
exercise the powers and perform the duties con- man to dispossess a dependent wife, daughter,
ferred on him or her by or under this Act (Section mother, or other female members of the house-
8[1]). The Act also provides that, to the extent hold (Lawyers Collective Women’s Rights
possible, POs shall be women. Some of the duties Initiative 2009). In order to avoid being home-
and functions of the POs include the following: less, many women stay in a hostile home.
(a) Assisting the magistrate in the discharge of Although legal provisions for providing com-
his or her functions pensation to victims are available under the Code
(b) Reporting to the magistrate about a domestic of Criminal Procedure and the Probation of
violence incident upon receipt of a complaint Offenders Act (1958), they are limited. For exam-
from the victim ple, the Code of Criminal Procedure recognizes
(c) Forwarding a copy of the complaint to the the principle of victim compensation, and Section
police officer in charge of the police station 250 authorizes magistrates to direct complainants
in the jurisdiction within which the incident or informants to pay compensation to people
is alleged to have been committed accused by them without a reasonable cause.
(d) Applying to the magistrate for the issuance of Section 358 empowers the court to order a person
an order of protection, if the aggrieved per- to pay compensation to another for causing a
son so desires police officer to arrest such other person wrong-
(e) Ensuring that the aggrieved person is pro- fully. Also, in a criminal proceeding, Section 357
vided legal aid under the Legal Services allows the court to impose a sentence to grant
Authorities Act (1987) compensation to the victim as well as order the
(f) Maintaining a list of all service providers defendant to pay the costs of the prosecution.
(g) Inform service providers that their services However, this is at the discretion of the sentencing
may be required in the proceedings court and is to be paid out of a fine recovered from
(h) Making a safe shelter home available to the the perpetrator (Srinivasan and Mathew 2007).
aggrieved person In addition to the restitution provision in the
(i) Making sure that the aggrieved person is Code of Criminal Procedure, Section 5 of the
examined by medical personnel if she has Probation of Offenders Act empowers courts to
sustained bodily injuries require released offenders to pay restitution.
(j) Submitting a copy of the medical report to the However, given the low rates of conviction in
respective police station and the magistrate criminal cases (fewer than 25% of defendants in
(k) Ensuring that an order for monetary relief is domestic violence cases are convicted), the inor-
complied with and executed in accordance dinate delays in completing the proceedings, and
with procedures prescribed under the Code the relatively low capacity of the average accused
of Criminal Procedure (1973) person to pay compensation, it is unrealistic to
24 Victims of Domestic Violence in India: Do They Have Rights? 375
say that there is a functioning victim compensa- temporary custody of children until a case is
tion scheme (Menon 2004). Unlike prior laws, resolved in a civil court, counseling and medical
the provisions under the PWDVA for allowing assistance, and protection orders. In addition, the
monetary relief and compensation (Sections 20 Act is intended to provide easy access to justice
and 22) are meant to provide specific financial and speedy access to relief. According to Lawyers
remedies to the victims of domestic violence. Collective Women’s Rights Initiative (2010), the
Although the PWDVA was hailed as the most Act offers a single window of access to judicial
important legislation yet passed for providing system and service providers for women facing
protection for women against physical, mental, domestic violence. Prior to the Act, women had
and economic abuse/violence, the Act was criti- to seek different types of relief from different
cized as being gender biased because it only pro- courts, which was not only time consuming but
tects women and some women could use this Act also dangerous. The Act requires key criminal
to teach their male relatives a lesson. Such trends justice personnel (e.g., police, POs, and magis-
were noticed in the case of anti-dowry law trates) to inform a woman of her rights at the time
(Section 498a). In addition, the definition of of the filing of the complaint. The periodic moni-
domestic violence includes minor verbal insults toring and evaluations, such as those conducted
and name-calling as abuse. Some critics of the by the Lawyers Collective Women’s Rights
Act felt that frivolous acts of “domestic violence” Initiative, will identify loopholes in the law as
could increase litigation and hurt the foundation well as problems with its enforcement. As of
of marriages (“Amend dowry law …,” 2010). 2010, the organization has completed four moni-
Others contend that the PWDVA has not toring and evaluation reports. The most recent
gained the desired level of social acceptance and evaluation (in 2010) found that married women,
that one of the main barriers was delays in case divorced women, women in live-in relationships,
processing. At the time of writing this article, the and mothers (in cases filed against their sons) are
effectiveness of the Act is questionable because filing cases under the PWDVA. Some states have
although India has always been exceptional in even established special cells within their police
drafting legislation in accordance with interna- headquarters to exclusively handle the cases that
tional standards, it has failed in the past to fall under the Act.
enforce them effectively. In addition, the recent Despite this progress, the formal justice sys-
Supreme Court decision regarding the right of tem is burdened with a backlog of cases and
the women to a shared residence has, to some domestic violence tends to take a backseat. As a
extent, limited that right. In S. R. Batra v. Taruna result, a new form of informal courts, known as
Batra (2007), the Court held that a “shared “Mahila Court” or nari adalat (women’s courts),
household” meant a house owned or rented by have emerged in many parts of India, particularly
the husband, or a house that is part of a joint in western and northern states. The nari adalats
family dwelling in which the husband has a are the results of grassroot efforts by women’s
share. In other words, if the house where the vic- groups (i.e., women’s collectives) to deal with
tim is staying is the sole property of her in-laws, violence against women and empower women
she has no right to the shared residence. This is a (Sharma 2000). These courts operate at the block
step backward in terms of protecting women and village levels and the members are trained in
from being thrown out of the joint family. legal issues, discrimination of women, and wom-
en’s rights. As of 2010, there were 184 nari ada-
lats in 9 states, and they had presided over 6,000
24.6 Conclusion cases (Purushothaman 2011). These courts have
been especially useful for women from rural
In spite of the glitches, the PWDVA is a significant areas and those who come from marginalized
legislation that offers various legal remedies communities. Typically, a group of five women
including monetary relief and compensation, sit in a circle in front of a local government office
376 S. Kethineni and M. Srinivasan
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Restorative Justice in the Asia
Pacific Region: Acting Fairly, 25
Being Just
suit local contexts and conditions within their reparation and non-domination”. Other research
criminal justice systems, advocates of restorative (Goulding and Steels 2006) has found that what
justice call for consistency in words, processes matters most to people, regardless of terminol-
and outcomes across boundaries. The downside ogy, is that due process is provided in a fair and
for this may be the loss of local and cultural dif- equitable way. Such due process should occur
ferences as the common language of restorative with protections for human rights, the right to
justice presents a globalization in terms of ser- voluntary participation, and the use of processes
vice types and delivery with common values and that accord sufficient time for all parties to par-
principles. On another more positive note, a uni- ticipate in a meaningful manner, according to
versal definition of restorative justice may be their needs. Currently, in many jurisdictions,
required in order to maintain its underpinning restorative justice processes are quickly pushed
ethos, as in some jurisdictions, restorative justice through legal process to meet deadlines and judi-
has been redefined and its core principles effec- cial outcomes. Also, the quality of facilitator and/
tively undermined to suit various governmental or mediator training is crucial, as is the manner in
“tough on crime” policies. On the other hand, which people are exposed to the criminal justice
according to Van Wormer (2008), Confucianism system and treated at their arrest. It is also impor-
contends that humankind is basically good. She tant that all victims, regardless of the nature of
argues that, “Confucius taught his disciples the the offence, have an opportunity to participate at
principle of ren or truthfulness and kindness”. a level at which they feel comfortable.
Furthermore, according to Hui and Geng (2001 Restorative justice processes can provide
cited in Van Wormer 2008), “Confucianism, benefits to victims, offenders and communities of
advocates a restorative approach to matters of interest, regardless of the place and time in rela-
crime and justice. It assumes, first and foremost, tion to the event. Using Howard Zehr’s (1990)
that the first victim of any criminal offence is the approach from his seminal text Changing Lenses,
offender himself or herself”. It remains a serious the RJ process looks at the following: (1) how the
concern that the oft times redefinition of restor- process can assist victims of crime and those who
ative justice has, in some jurisdictions, led to have offended against them; (2) how the situation
increasing rather than decreasing engagement can be resolved; (3) what do the people involved
with the criminal justice system. feel about it; (4) what needs to happen to put
Braithwaite (2002) maintains that the “core things right; (5) who is going to do it. The ques-
listening principle” and the “non-domination tion then remains, can we live and work with a
principle” are both central to the integrity of the variety of restorative practices that bring sus-
restorative process, involving the telling of sto- tained or even short-term benefits to victims of
ries of victims, accused offenders, community crime, offenders and their surrounding communi-
members and stakeholders to deliver justice out- ties of interest, and yet are more difficult to iden-
comes. Following on from this, Ozawa (2003:65) tify and evaluate? The answer is perhaps more
notes within Singapore that “in this sense, justice about being positive, than a direct “yes”. A pre-
is not just an abstract concept, but the rectification vailing lack of perceived fairness and due process
of or recompense for interpersonal wrongs. Crime is often noted among participants of current
rates thus reflect not simply matters of rules and adversarial services, and has certainly raised con-
regulations, but the violation of societal norms, cerns amongst the judiciary in Australia. As
interpersonal values, and principles governing Malcolm (2004:2) states:
behaviour and the treatment of other citizens For society to maintain its respect for the law, the
within a given nation”. Pranis (2007:59), too, law must bear relevance to the society to which it
supports the range of values recognized as impor- is applied. There are many occasions upon which a
tant to the restorative justice process, including judge is required to decide what is just, what is fair
or what is reasonable. In cases of that kind a judge
“respect, maintaining individual dignity, inclu- necessarily seeks to apply basic values representa-
sion, responsibility, humility, mutual recognition, tive of community values. In doing so, he or she
25 Restorative Justice in the Asia Pacific Region: Acting Fairly, Being Just 381
cannot merely reflect transient shifts in public ple in the Asia Pacific region, that they have con-
opinion …Judges should not be influenced by a tinued their traditional ways of dealing with
temporary shift in public opinion or by prejudice,
emotion or sentiment. disputes in a way that seeks to restore harmony in
a process considered and experienced as fair and
just. Restorative processes throughout the Asia
Pacific region often utilize deep traditional and
25.2 The Contentious Origins cultural ways of striking a balance, making things
of Restorative Justice fair, replacing what is lost or stolen, and making
good following harm. In other words, living in
In response to a commonly used notion that harmony with others and nature. Throughout his-
restorative justice has its origins among tory, these processes have been fundamental
Indigenous and First Nations people of Canada, among many peoples for resolving localized dis-
Australia and New Zealand, Cunneen (2007) putes and crimes. This was the social contract
identifies Indigenous and non-Indigenous sanc- and inclusion that helped people to desist from
tions that are not restorative. Many of these are harmful acts, belonging to community where
traditional sanctions. According to Cuneen, rules bound people together. In terms of Confucian
Indigenous punishments for wrongdoing may philosophy and its compatibility to restorative
include “temporary or permanent exile, with- justice, Ozawa (2006) identifies certain values as
drawal and separation within or from the com- being similar. These are:
munity, public shaming of the individual, and Compassion (“ren”); filial piety (“xiao”); righ-
restitution by the offender and/or their kin. Some teousness (“yi”); propriety (“li”); loyalty (“chung”)
sanctions may involve physical punishment such and reciprocity (“shu”). In this schema of life, for
as beating or spearing”. The Australian experi- example, “reciprocity” sees persons not so much as
individuals, but as persons caught up in an intricate
ence supports Cuneen’s argument as many of web of relationships.
Australia’s traditional Aboriginal people, living
in remote areas, still use tribal punishment as Conversely, many people believe that restor-
well as reparations and restoration. In addition to ative justice originated in Western culture embed-
tribal forms of punishment, there is widespread ded within a more formalized Judeo-Christian
belief that practices such as community forums framework. This process highlighted a variety of
and healing circles are closely linked to alternatives to revenge and retribution, moving
Indigenous peoples, New Zealand’s Maori towards notions of balance, being fair, and deliv-
people, Australian Aboriginal and American First ering just outcomes by law. The “giving back” or
Nation cultures where people had to come face to replacing what was stolen was a part of commu-
face with other members of their community to nity living, especially among small social groups
settle disputes and put things right. In addition to such as villages where people were generally
these particular Indigenous peoples, we acknowl- known to each other.
edge and value the many other Indigenous peo- Braithwaite (1999 :2) contends that restorative
ples of the Asia Pacific region who also have justice has been the dominant model of criminal
practices that include many components of what justice throughout most of human history for all
we now call restorative justice. the world’s peoples. Bottoms (1999) however
Many of these local practices may not be argues that in pre-modern societies, the resolu-
immediately recognized as the prevailing aca- tion of local disputes were more varied than
demic notion of definitions of restorative justice restorative justice advocates and practitioners
but they are local practices that provide processes suggest, noting that many processes maintained a
to which people agree, meeting the desired out- high degree of threat, coercion and punishment.
comes of mutually agreed settlement following a Both arguments hold certain truths historically
dispute. These local cultural ways of being fair and in contemporary society. The notion of the
and just demonstrate, for many Indigenous peo- common good is also reflected in these discussions
382 B. Steels and D. Goulding
as social connections of family and community tion following the various wars and imposition of
hold together the values that lend themselves to the victor’s rules and practices of doing justice.
the larger social and moral order. Although Blagg Within the authors’ jurisdiction of Western
(1997) remains critical of many of the restorative Australia, there is a current conversation that
justice practices being claimed as Indigenous, regards juries as being rather ineffective. The
suggesting that there is a process of re-colonizing jury system, according to McCusker (2009:2), is
by justice systems which further exploit so outdated that it “leads to unjust convictions
Indigenous practices. He argues that states con- and to guilty people being acquitted”.
tinue to colonize communities by using these
techniques to impose new law and order regimes
under the guise of “traditional”. In support of 25.3 The Asia Pacific Region
Blagg’s argument, Daly (2002:48) claims:
If the first form of human justice was “restorative The Singaporean legal system was originally
justice”, then advocates can claim a need to recover based on British colonial forms of justice, result-
it from a history of “takeover” by state- sponsored ing in many negative consequences. However,
“retributive justice”. By identifying current indig- Ozawa (2006) contends that today:
enous practices as “restorative justice”, advocates
can claim a need to recover these practices from a …the courts of Singapore are of the belief that
history of “takeover” by white colonial powers courts are not dealing simply with complex legal
who instituted retributive justice. matters but with complex human relationships
Indeed, Blagg’s argument rings true, for we within an overall context of societal values based
on religious and moral traditions. It is not recidi-
often witness the homogenizing of practices vism which is the touchstone of Singaporean jus-
through the use of international trainers who visit tice, but rather the redemption of individuals from
vastly different cultural groups and impose their lives which violate high norms of interpersonal
own Western concepts and values without explor- behaviour.
ing and valuing local and traditional processes. In New Zealand, too, Judge McElrae (2010:2),
This effectively subsumes local knowledge and an experienced restorative justice practitioner,
experience under the guise of Western best prac- claims that:
tice. Cunneen (1999a, b) also maintains that …restorative justice offers a quite different view of
amongst Aboriginal and First Nation cultures the victims’ interests, one that is not necessarily
processes of Indigenous governance are crucial opposed to that of offenders—and can produce
so that local people and their communities can “win-win” outcomes. They are actually what is
aimed at every time. If the Courts could more con-
play an important role in their own justice pro- sistently show that victims’ interests can be catered
cesses and, as a result, empower and decolonize for in meaningful ways (not token ways like victim
their knowledge base. Replacing colonial forms impact statements), and that their needs are better
of justice with local Indigenous community rep- addressed in this way, much of the pressure for
tougher sentences would fall away.
resentation means that perpetrators and their vic-
tims are more likely to comply and engage with As previously mentioned, many nations within
the social contract generated from the restorative the Asia Pacific region have a history of being
process. Although this is a delicate path to walk, dominated in one form or another. Their justice
it is one that the authors have experienced systems have not escaped this domination. The
(Goulding and Steels 2006; Steels 2008). authors note the ways in which practitioners, aca-
In terms of criminal justice systems, there is demics and researchers from these regions can
already a Western hegemony at play with the provide a unique insight into what has worked at
general acceptance that Western systems of jus- the grass roots level amongst local Indigenous
tice are better, more efficient and more effective. peoples. These restorative justice practitioners
Western court structures are built around the jury provide some degree of fairness and justice, giv-
system with the rules and regulations of coloniza- ing a voice to those who have been harmed as
25 Restorative Justice in the Asia Pacific Region: Acting Fairly, Being Just 383
well as those people who may have brought harm embedded, fixated ways of being in the world”. It
upon others. Such restorative practices are often becomes clear that regardless of local policies
claimed as local, culturally appropriate or tradi- and the political ambitions of a few, the commu-
tional within the aforementioned regions. nity is then, according to Pranis (ibid), “…able to
Restorative processes have resonance with both embrace the creativity of chaos, the possibility of
communities and governments in an attempt to dreams”. People are then “empowered to imagine
break away from the retributive justice processes new ways of being, to problem solve on a deep
that have engulfed them. In many cases these level” (ibid). Meanwhile, from New Zealand,
regional nations have, at one time or another, Judge McElrae (2010):3) gives hope that the
experienced similar colonizing influences to criminal justice system will be able to “…deliver
those of Australia and New Zealand. Morris justice for all, not just for defendants, and that the
(2002:598) reminds us that “restorative justice courts will be left to get on with the job of judg-
encourages cultural relativity and sensitivity ing according to the law and applying principles
rather than cultural dominance”. of respect and compassion for all”.
For many people, being more restorative is Further, the authors claim that these principles
initially more about a personal rather than a state can reflect the underpinning values within juris-
issue, regardless of whether it is Asian, European dictions. For example, Ozawa (2006:78) claims
or Indigenous. Many nation states within the Asia that “with a population drawn from ancestral
Pacific region agree that what matters most is the roots in China, Malaysia, India and other parts of
ability to make things better, and to produce har- Asia and Southeast Asia, and populated with reli-
mony where there is conflict following criminal gions of the region (mostly Buddhist, but also
acts or anti-social behaviour. Whilst the state has Christian, Muslim, and Hindu), Singapore is also
the mechanism to intervene, local actions are infused with Confucian values. In addition,
often more desirable, effective and experienced throughout the region, informal as well as formal
by the people as fair and just processes and out- ways of dealing with wrongdoing are used. These
comes. Indeed, in Chinese culture, Chi-Kong Lee are often reflective of family and community
(2008) claims that the ancient Bao-Gu and tradi- needs and dealt with in a holistic fashion. For
tional mediation systems reflect many aspects of example, in Singapore, Ozawa (2003:65) con-
contemporary restorative justice. These systems tends, “…this is a society which [is] not bred of
seek to restore feelings of safety and personal retaliatory rules nor simply reduced to fear of
dignity amongst victims, encourage feelings of legal sanctions, but steeped in the heart of the
responsibility amongst offenders, thus facilitat- citizens—a high regard for interpersonal and
ing their successful reintegration into the com- familial connectivity”.
munity. Moreover, Chi-Kong Lee states that: In Japan, the practice of Ji-dan has a long tradi-
1. The “Bao-Gu” system establishes the base of tion of use as a means of conflict resolution. In
non-lawsuit practice, so that the social relation contemporary Japan Ji-dan remains useful as a
that had been broken by the offence can be process of negotiation between family members as
restored. This helps reinforce social stability a way to resolve a dispute between two parties. It
in the community and alleviates the conflict may mean that no direct face-to-face meetings will
between the offender and the victim. occur, but that family or trusted others will negoti-
2. The application of the “Bao-Gu” system, like ate for a fair and just outcome, saving face and
restorative justice, can spare financial resources restoring harmonious relationships. However, it is
of criminal justice system, especially in reduc- pertinent to note that Japanese social organization
ing the costs of imprisonment. and cultural practices are central to the success of
Pranis (2010:4) suggests that when a commu- Ji-dan. As Komiya (2011:132/133) points out:
nity can “draw on and trust its own inner resources As Japanese have obtained a sense of security by
to discover the validity of a new paradigm, the integrating themselves with groups, they had no
community is liberated from bondage from old choice but to strictly adhere to countless rules for
384 B. Steels and D. Goulding
group cohesiveness. In this process, the Japanese minority groups and marginalized people, the
have become a patient and orderly people, and devaluing of Indigenous tribal and language
have successfully elevated their level of self-
control. groups and the powerful use of state sanction.
These factors often disallow or remove victims’
Certainly, it is the authors’ contention that rights and due process at law, diminish offenders’
such elevated levels of self-control as seen in rights and responsibilities and negate the notion
Japan are not apparent within contemporary of natural justice. Conversely, in many jurisdic-
Australian society where individual rights con- tions, the people are calling for discussions
tinue to subsume notions of the common good as around their justice systems, to deliver fair and
a societal and cultural norm. justice processes for all participants, in a safe and
Set among the problems that appear to have equitable framework.
plagued many practitioners throughout the fields The Asia Pacific regions hold the world’s larg-
of criminology, victimology, penology, and est populations, namely China (1.3 billion) and
restorative justice practices and policy is that India (1.1 billion), along with Pakistan and
most often we see through a Western lens. Also, Indonesia. The regions encompass diverse cul-
we often hear through a Western ear that inter- tures and complex belief systems from Buddhism
prets within a frame of colonial histories and with its Four Noble truths, the respectful Shinto
imperial expansionism. We are partially captured temples, the simplicity and complexity of Zen,
today by the world’s marketplace of criminal jus- through to the mystics of India and the Teaching
tice ideas with theories and practices developed of the Gita. There are also the teachings of the
for one culture and rolled-out to another. Steels Quran among the world’s most populated Muslim
(2008:4) identifies much of this as he highlights country and the words of the Old and New
the need for local people and their communities Testaments of Christianity as well as the teach-
to have “pertinent information readily available ings of the Torah. The regions also include ancient
to them” along with many other issues such as Confucianism with its philosophy of restoring
“fair and just processes in which to participate in harmony and Taoism and the need for balance.
and develop clearly defined goals that benefit the All of these belief systems exist within nation
common good”. states that can display the politics of nationalism,
It is timely therefore to welcome and to communism, capitalism, juntas, democratic gov-
acknowledge that whilst we are from different ernments and dictatorships. Such vast diversity
backgrounds, we are all the experts of our own notwithstanding, the authors argue that it is still
experiences. We hold the social capital and the possible to find some common ground. For exam-
collective desire to reduce harm. We are a part of ple, the global ability to help others in times of
the collective problem with its local solutions. anguish and disaster that often crosses national
We also have a great deal in common as we build boundaries. Trying to keep a balance between yin
up our region’s ability to be effective restorative and yang in the maintenance of harmony impacts
justice practitioners, researchers and academics. upon the young as well as the elderly and knows
People throughout the regions know that they no no limits. Bloodlines can stretch far across land
longer live in isolation and that there is much to and seas and it is these interconnections that
be learned from each other as we learn to respect highlight the many ancient traditions working
each other’s ideas, values, customs and concerns. together with modern practices. They bring into
Some of the localized practices may not use the the twenty-first century the Asian Pacific prac-
term “restorative justice” but already have many tices of harmony and peace with the self, among
of the desired components in terms of process others, within local villages, small communities
and outcome. Yet at the same time, sadly, through- and peaceful co-existence between nations.
out the region harsh and at times inhumane pun- On the other hand, conflicts, competition and
ishments remain. These are (in no particular order disunity abound, causing fractures in relation-
of importance): the over-use of prison against ships that bring harm to individuals, communities
25 Restorative Justice in the Asia Pacific Region: Acting Fairly, Being Just 385
and even nations. Today within the region, nation values and practices”, the philosophy is currently
states attempt to heal the wounds of the past, to seen as valuable. In addition, Braithwaite
reconcile, to rebuild and strengthen good and (2002:22) indicates that “Confucius is the most
harmonious relationships through respect and important philosopher of restorative justice” and
with integrity. Restorative practices within the has long argued that such philosophies are seen
region already encourage planning and financing as valid to the region’s restorative practices. Liu
of resources and energy on positive intervention and Palermo (2009:51/52) also make the point
programs, providing rehabilitation within com- that “The Confucian legal tradition was secular
munities, including and prioritizing support for and largely informal… Humanity and the human
victims. The traditional Chinese emphasis for world were the focus of Confucian philosophy”
example, as pointed out by Van Wormer (2008:3) where “ideal harmonious human-society rela-
is on “harmony between persons and on the unity tionships and harmonious human-nature relation-
of humanity with nature. Influenced by Confucian ships were sought”.
communitarian ideology, the Chinese criminal Liu and Palermo (2009:54) add that “…when
justice system relies on grassroots committees to order and harmony are disrupted by disputes and
provide social control and to resolve conflict”. crimes, the final objective of the law is to restore
These and other restorative practices help to heal that order and harmony, to restore the relation-
fractures within families, provide wellness and ships to their original state”. They claim that this
harmony and promote the Asia Pacific paradigm principle is “in essence restorative in nature” and
within a sociological, psychological and crimino- that by “placing social relationships over other
logical context. This is indeed the foundation of goals, Confucian thought coincides with modern
restorative practices, deeply rooted in the Asia principles of restorative justice. Furthermore, Liu
Pacific fabric, interwoven into the daily lives and and Palermo, (2009:54) argue that the most
played out in day-to-day experiences of being import aspect of Confucian principles of justice
fair and just. in traditional China are that “resolution must be
Many traditional ways of restoring justice fair and must respect human feelings tian li ren
within a fair process have been retained by local qing”. Although the Confucian ideals that sup-
people of the region, including but not limited to, port harmony through wu song (no law suit), are
small rural communities in India, Pakistan, seen today in contemporary Chinese criminal
Taiwan, Indonesia and Malaysia. In China, many justice circles as being “implemented at the
disputants use traditional non-judicial processes expense of individual interests and legal rights”
whereby parties to a dispute may not face each (ibid). The ancient and traditional way of doing
other but are represented by a close family mem- justice, one based on “morality, feelings and rea-
ber who then speaks through a negotiator to the sonableness” (ibid) is at odds with prevailing
other party’s relative. In turn, the negotiator Western legal principles now used within Chinese
speaks to the relative or representative acting on mainstream justice. The obvious tensions caused
behalf of the other person at the centre of the dis- by any criminal act are now viewed as a break in
pute. It is a shuttle-style mediation that has a deep the relationship with the state, rather than a break
history within Chinese culture and is located out- in the social relationship between human beings.
side of the state sanctioned system. Following on This is as noticeable throughout China as it is
from this, Liu and Palermo (2009:51) contend elsewhere in the region.
that “…the Chinese Confucian legal tradition Certainly, it is important to note, that we do
lends high promise for the development of restor- not have enough evidence of whether these tradi-
ative justice in China”. Whilst Liu and Palermo tional practices reduce the likelihood of repeat
make it clear that “few studies have analyzed and offending, or if the people who use these methods
specifically identified those specific philosophi- are more satisfied with the process and outcome
cal ideas and principles of the Chinese traditional than if they went through the formal justice sys-
legal culture which encourage restorative justice tem. What we do know is that such practices hold
386 B. Steels and D. Goulding
some of the key ingredients of being fair and just, It is now more than a decade into the new
of restoring a balance, producing harmony and millennium and throughout the world a great
reducing fear. These traditional restorative pro- many people are calling upon their governments
cesses warrant more in depth research in order to to deliver justice in a more transparent, fair and
ascertain their real impact, if any, on rates of just way, through a process that recognizes their
recidivism, victim, offender and community sat- human rights. They demand a cultural change
isfaction, and victims’ mental health outcomes. from their local police services, courts, parole
boards and community justice agents. This is
particularly true from minority communities
25.4 Underpinning Theories and the most marginalized people. In a regional
sense, as Morris (2002:598) contends, “restor-
Tyler (1990; 2006) claims that people are more ative justice also emphasizes human rights and
likely to comply with the social sanctions imposed the need to recognize the impact of social or
on them when they feel that they have experienced substantive injustice and in small ways address
fair and just process, even if the outcome is differ- these rather than simply provide offenders with
ent to what they desired. Often the use of tradi- legal and formal justice and victims with no jus-
tional methods that, at first glance, appear not to tice at all”. Although many of these discussions
have due process or just outcomes are more accept- can be applied today within the broad social
able within a local context where informal rather movement of restorative justice and penal
than formal criminal justice processes are used. It reform, the conversation often relies heavily
is this apparent lack of faith in mainstream crimi- upon the Western perspective, leaving out many
nal justice systems to deliver fair and just outcomes of the Asia Pacific peoples who are able to sup-
that encourage the development of alternative ply a wealth of experience in settling local dis-
paths. Perceptions of fairness are crucial to the putes by community means. People within the
legitimacy of the criminal justice process, for as region have witnessed change where national
Tyler (1990:172) indicates, being “unfairly treated” disputes have often fuelled vicious oppression
disrupts “the relationship of legitimacy to compli- by brute force and violence. Reclaiming “old
ance” even more than “receiving poor outcomes”. and wise ways” has always had a place among
In other words, all participants involved in a crimi- people within the region where wisdom, age,
nal offence or fracturing of relationships (offender, and harmony are valued conditions that lend
victim, community of interest) ought to be in a themselves to resilience.
position to feel as though they are being treated Any focus on the treatment and rehabilitation
fairly and with respect. Such acceptance would of people ought always to consider the use of a
apply to many local practices, including Ji-dan. broader lens, embracing both victims and offend-
We also know that many people do not experience ers. A combination of therapeutic and restorative
our current adversarial regimes as fair and just practice can provide an opportunity for offenders
from the point of arrest though to sentencing and and victims to feel satisfied with both process and
beyond. Victims are frequently left outside of the outcomes. A major thread in the fabric of respon-
process as well as, in many jurisdictions, being sibility taking amongst offenders is the challenge
used as a tool of the prosecution. For all partici- to decrease “neutralization” (Sykes and Matza
pants, process is always paramount. Wholly restor- 1957:664) a practice central to the therapeutic
ative processes are designed to provide fair and process. Neutralization is defined as a denial of
just process, one that responds to local values, personal responsibility. In their work with juve-
human rights and fair treatment of others in and niles, Sykes and Matza recognized a variety of
around their community. Ideally, they should strategies whereby offenders deny their responsi-
reflect local practices, ensure fair and just treat- bility for a criminal activity; denial of responsi-
ment that takes note of grassroots values, and pro- bility, denial of injury, denial of victim,
vide conversations around human rights and condemnation of the condemners, and appeal to
protection of both victim and perpetrator. higher loyalties.
25 Restorative Justice in the Asia Pacific Region: Acting Fairly, Being Just 387
That said, Cunneen (1999a, b) mentions that of restorative justice, that of re-integrative sham-
there is often a degree of neutralization that can ing (as opposed to “disintegrative or stigmatic”
be found amongst First Nation communities shaming) of offenders in an environment of safety
where there is a level of resentment and disregard and support. As Braithwaite (1989:55) contends:
for what is often perceived as an unjust colonial Re-integrative shaming means that expres-
authority. This provides an opportunity for peo- sions of community disapproval, which may
ple to neutralize behaviour by what Sykes and range from mild rebuke to degradation ceremo-
Matza (1957:664) view as “condemn the con- nies, are followed by gestures of reacceptance
demners”. Further to this, and in line with other into the community of law-abiding citizens.
underpinning practices which identify positive These gestures of reacceptance will vary from a
lifestyle opportunities for offenders, Maruna and simple smile expressing forgiveness and love to
Immarigeon (2004;6) contend that “the major quite formal ceremonies to decertify the offender
correlates of desistance from crime identified in as deviant. Disintegrative shaming (stigmatiza-
research…involve ongoing, interactive relation- tion), in contrast, divides the community by cre-
ships that can take up most of an individuals wak- ating a class of outcasts.
ing life”. Farrall (1995:23) also found that, in Combined, the above transformative and
general terms, “…desistance occurs away from restorative constructs encourage a sense of chal-
the criminal justice system”. In short, social rela- lenge to offenders’ neutralisations, and provide
tionships are seen to be central to restoring jus- them with an opportunity to feel satisfied with
tice, both for victims and offenders especially both the process and outcomes. This last point
when crime is viewed as a fracture of relation- meets Tyler’s (1990:172) notion that fair process
ships within a community. Further to this, is crucial to the legitimacy of the criminal justice
Braithwaite (1989) argues that re-integrative process, for as he indicates, being “unfairly
shaming is most effective when used in the pres- treated” disrupts “the relationship of legitimacy
ence of “relatives, friends or a personally relevant to compliance” even more than “receiving poor
collectivity” largely because “repute in the eyes outcomes”. Victims and offenders, together with
of close acquaintances matters more to people supporters, can benefit from such processes for,
than the opinions or actions of criminal justice as previous research has indicated, they provide
officials”. Tyler (2006:307) also provides support all parties greater satisfaction with process and
to the argument that close family and friends, the outcome (Beven et al. 2005).
crucial supportive network, provide a benefit, not The following comments from Western
just in terms of human resources but also as a Australian Chief Stipendiary Magistrate Heath1
mechanism of improving self-image and suggest that the restorative process used within a
compliance: community group conference model of restor-
The restorative justice conference seeks to moti- ative justice trialled in his court was a valuable
vate such immediate and future behaviour by sepa- resource for the court as well as being beneficial
rating the “good” person from their “bad” conduct. to offender, victim and community. He claimed
The conferences then seek to both deal with the that:
consequences of the bad conduct and, separately,
to connect the good person to their motivation to The restorative and transformative justice pilot has
behave in ways that win respect from their family, provided a rare opportunity to receive an indepen-
friends, and community. It is this connection with dent report of the interaction between the victim, the
one’s favourable self-image that motivates compli- offender and their families or friends after the
ance in the future. offence. In that way it goes beyond the matters that
might be contained in an outline of the facts, a victim and group harmony and adherence to the social
impact statement or a plea in mitigation. It provides contract. As previously mentioned, there are many
the Court with valuable information, particularly in
determining whether there are matters which will links between the personal beliefs and social val-
make a sentence other than one of imprisonment ues that are in tune with a more Asian Pacific view
appropriate. It is a valuable tool in the context of of restorative practices. It is from this perspective
therapeutic jurisprudence in forcing offenders to that we hope to expand the wealth of practices
confront problems with their families and peers and
has on occasion uncovered issues not otherwise that are seen to be fair, just and equitable, recog-
apparent to those dealing with the offender. nizing victims’ and offenders’ rights to dignity
and support. We argue that it is incumbent upon
Court based restorative processes are often regional practitioners and academics, community
strengthened in their objectives when combined groups, governments, non-government organiza-
with transformative or therapeutic processes as in tions and not-for-profit organizations to engage
the aforementioned pilot study. These combined together via various networks, in order to explore
processes provided the offender with encourage- the wealth of locally based practices that bring
ment and support through relevant therapeutic about fairness and justice to people.
interventions and personal healing. In this way The ability to reflect rationally upon our
the victim was able to regain feelings of personal actions and those of others is often the starting
safety together with the support necessary to point after we have caused harm or experienced
meaningfully engage in the process and not just being harmed by another. It is a crucial time to be
respond as a tool of the prosecution. It is often able to have the space to review our lifestyle, to
difficult to recognize that throughout these con- think of cause and effect, to think of what has
structs, victims and offenders can experience the occurred and to go over in our head those often
court as a place that is able to assist with their catastrophic and defining moments. As Sykes
personal healing and well-being. As Winick and Matza (1957) found, it is at this point that
(2003:26) claims, “…therapeutic jurisprudence many offenders attempt to neutralize their behav-
suggests that law should value psychological iour, shifting blame and responsibility to others,
health, should strive to avoid imposing anti-ther- including the victim. Reflection on our criminal
apeutic consequences whenever possible, and and anti-social behaviour, our relationships and
when consistent with other values served by law, our lifestyle can lead us towards personal trans-
should attempt to bring about healing and well- formation and positive personal growth. For those
ness”. These restorative and transformative pro- who have experienced being victimized by
cesses constitute a paradigm shift from the another, it is often a period of anger, of question-
traditional view of the presiding court officer as a ing, of feelings of being let down, anxiety, and a
punishing law enforcer to that of one who, with need for answers. Reflection itself often becomes
adequately resourced supports, finds solutions to a traumatic experience, one that may require sup-
problems and tries to make right and fair that port of family and/or friends. It often comes as a
which has been seen to be wrong. This is a pro- revelation to people as they recount the conse-
cess that addresses the common good, collaborat- quence of their actions and engage with their
ing and utilizing the many cultural and traditional feelings, that they may be seen in a less favour-
ways in which people experience justice. able light by others than they would wish.
However, as Tyler (2006:307) states:
The restorative justice approach focuses on engag-
25.5 Personal Journeys ing people’s feelings of responsibility to their family
and Reflections and community. It argues that when people feel that
they have damaged their image in the eyes of others,
this has destructive consequences for themselves.
The aim here is to draw attention to and, an aware-
ness of, the wealth and diversity of Asian and Indeed, as Ahmed and Braithwaite et al. (2006)
Pacific regional processes that influence personal claim, “the effectiveness of restorative justice,
25 Restorative Justice in the Asia Pacific Region: Acting Fairly, Being Just 389
however, largely depends on the degree to which sorry for my actions that have harmed others”,
some key relational parameters can be altered, we are on our personal path to restore harmony
specifically acknowledgment of wrongdoing, into our life and hopefully restore harmony
awareness of harm done”. For some of us, revela- among others. It is in this seeking to bring about
tion comes about as we discuss our problems personal peace and harmony that gives us direc-
with others, as we read from our books of faith tion. As Zehr (1990:24) points out:
and from our personal encounters among family Crime is in essence a violation: a violation of the
and friends. We may find as we recount past self, a desecration of who we are, of what we
events that have brought us harm, that we have believe, of our private space. Crime is devastating
good people around us who are there for us, and because it upsets two fundamental assumptions on
which we base our lives: our belief that the world
in this revelation that we are not to blame for is an orderly, meaningful place, and our belief in
whatever has happened to us, and that we can be personal autonomy. Both assumptions are essential
empowered by these thoughts that lead us to react for wholeness.
positively to ourselves once again.
Being resentful is understandable whilst we Forgiveness comes to the individual by both
are in the space that follows being harmed by oth- internal and external means. That is, we have the
ers, or even harming others, feeling or showing power to forgive or to withhold forgiveness. As
indignation and displeasure with ourselves or offenders we rely upon outside sources to enter
with another. We may even be resentful towards into the state of being forgiven. Repentance, on
the way in which we have acted. In most circum- the other hand, directs us to a change of direction.
stances it takes courage to let go of this emotion Within the spiritual context it can often mean
that often prevents us from healing regardless of doing what is required for us to turn back to the
whether we are the victim or offender. Being spiritual path that we may have left as an offender
resentful towards other people who have hurt us or as a victim of crime. Repentance is more akin
or who still bring harm to us is common. However, to a change of heart or a change of mind that sets
this emotion can become debilitating and can us back on track, an ability to reflect and trans-
impact negatively on positive mental health out- form our ways. It often begins with a regret. For
comes but it clearly demonstrates how crime some of us this could mean placing flowers at a
impacts upon both one’s self and our social net- shrine, saying sorry to those we have harmed,
works. Rejecting some of our past ways and con- going along to the mosque or temple to acknowl-
sidering the thoughts of others may well contribute edge the existence of a higher being, or going to
to an ability to move on and transform our lives. ask pardon from our ancestors for the shame that
Rejection of past negative practices can afford us we have brought upon them. Some form of per-
the ability to find more a more harmonious way sonal confession to loved ones usually precedes
of being and a greater understanding of ourselves this.
in relation to others. The desire to reform our- Within restorative justice, respect comes about
selves is a critical point for us all. It comes about as we engage with others, present the truth and
as we tip the balance of the scales and understand seek a way to make things right. Respect comes
that the past ways are unhelpful and that there is in many packages. It comes as a way of thinking
another way, perhaps a better way to engage with about ourselves, ensuring that we do things that
others and to do things in a more positive light. help us to become or remain respected. It comes
Taking responsibility for one’s actions is cen- as we think of the way others have treated us
tral to the process of restorative justice. As respectfully and how with think respectfully of
Braithwaite (1996:13) notes, taking responsibil- them. We can receive, give and earn respect.
ity for one’s actions works towards “restoring Others often see respect as a product of doing the
victims, a more victim-centred criminal justice right thing. Respect moves beyond admiration.
system, as well as restoring offenders and restor- Respect for the self is seen as essential in many
ing community”. Once we can say “yes, I am philosophies. Apology and reparation in one
390 B. Steels and D. Goulding
form or another are also essential components of “destroys the chance to build the emotional
restorative processes. This is often about putting scaffolding that is needed to boost self-regulation”.
things right, repairing damage, and attempting to They note that practitioners of restorative pro-
make amends. These are all parts of apology and cesses, working within the formal institutional
reparation. Reparation can also be applied to structures, ought to focus on “conditions that enable
work done to make up for the harm caused. forgiveness, reconciliation, and adaptive shame
Restitution is often closely related to making a management to take place”.
financial settlement to assist a victim of crime, or
their family. It can also be a way in which a per-
son or company covers the cost to the community 25.6 Conclusion
following a personal or corporate crime or harm-
ful action. Justice cannot be restored or fairness The personal and professional journeys towards
experienced if there is no effort made to provide restorative justice being undertaken throughout
apology, reparation and restitution. the region provide an opportunity for local and
Rehabilitation and a welcoming back to fam- regional restorative justice practices to grow and
ily and/or community are essential elements in become entrenched as a central component of
the final step of restoring social harmony. The mainstream criminal justice systems. The
notion behind rehabilitating a person, corpora- influence of a restorative ethos on retributive
tion or environment is usually meant to convey a criminal justice systems would effectively pro-
return to good ways, better health and well-being, duce fairer, more equitable and just policies and
or to provide assistance to a person who has been practices, delivering positive and supportive ser-
removed from their family or community. Within vices to those who wish to participate.
the context of restorative justice it may apply to a It is fitting to conclude with the wise words of
person who has experienced guilt or equally it the architect of South Africa’s Truth and
may apply to a person who has experienced feel- Reconciliation Council, a fervent supporter of
ings of being unsafe following harm done to restorative processes and the healing powers of
them. Both are in need of support to re-engage forgiveness, Archbishop Desmond Tutu (cited in
positively with their everyday lives. Reconnecting Stern 2006:153):
with their spiritual path or doing good works as a A criminal offence has caused a breach in relation-
part of their re-commitment to their community ship and the purpose of the penal process is to heal
are all part of personal rehabilitation, transforma- the breach, to restore good relationships and to
redress the balance. Thus it is that we set out to
tion and renewal. work for reconciliation between the victim and the
Reconciliation can be defined in several ways. perpetrator. There may be sanctions such as fine or
At one level it is a process by which individuals short exile but the fundamental purpose of the
have an understanding or agreement with another. entire exercise is to heal. In the retributive justice
process the victim is forgotten in what can be a
Within another perspective it is a place where peo- very cold and impersonal way of doing things. In
ple are in harmony with themselves, their belief restorative justice both the victim and the offender
systems and their environment. Tyler (2006) main- play central roles. Restorative Justice is singularly
tains that “by seeking to separate out and repair the hopeful…
damaged self while condemning the destructive
action, the restorative conference has the goal of
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Evolution of Restorative Justice
Practices for Juvenile Offenders 26
in the People’s Republic of China
concept of “double protection” is highly valued: in the construction of communism, the prelimi-
this practice protects social order while also nary stage of socialism is, by definition, already
emphasizing the protection of juveniles. The free of the characteristics that inevitably gener-
PRC’s Criminal Code lays down two important ate criminal behavior under capitalism. In such
legal principles—leniency and the inapplicability a condition, laws are generally geared to the
of the death penalty to juvenile offenders. The construction of a collective and responsible
PRC’s criminal justice system endeavors to society; the technicalities of criminal proce-
uphold juvenile delinquents’ accountability for dures and related enforcement rules are not
what they have done while giving them a chance clearly defined. In the late 1970s, a more sophis-
to be rehabilitated and reintegrated into society ticated modern Chinese legal system came into
(Zhao 2001). being along with the economic reform. At the
Over the past few decades, English-language same time, a number of laws and legal resolu-
studies on the PRC’s juvenile justice and delin- tions related to the protection of juveniles were
quency law reform have been rather limited. promulgated by the National People’s Congress
Hindered by tight state control of information and its standing committee beginning in 1979.
sharing, the PRC’s scholars and governmental They include the Marriage Law, Labor Law,
officials seldom presented papers at international Law of Compulsory Education, Criminal Law,
conferences before the 2000s. With the PRC’s and Criminal Procedure Law. These laws set up
increased political openness, scholars can access principles and measures guaranteeing the rights
useful information more easily. English-language and interests of juveniles with respect to the
literature discussing the PRC’s legal, crimino- litigation process and the social and education
logical, and juvenile justice matters have become protection of juveniles. In particular, the
more common since the early 1990s (Biddulph Juvenile Protection Law 1991 (JPL) and the
1993; Clark 1989; Curran and Cook 1993; He Preventing Juvenile Delinquency Law 1999
1991; Kuan and Brosseau 1992; Jolley 1994; (PJDL) strongly relate to juvenile protection
Leng and Chiu 1985; Macbean 1995; Ogden and delinquency prevention (see Standing
1992; Rojek 1989; Tanner 1999; Troyer 1989; Committee of the National People’s Congress
Wong 1999). A review of this literature suggests 1991; 1999).
that the Chinese communist leaders relied heav- The JPL defines the duties, responsibilities,
ily on the police and neighborhood public secu- and authority parents or guardians of a juvenile
rity organs and did not trust their formal judicial have in relation to juvenile welfare, right of
system between the 1950s and 1970s. After the education, and other legal rights. This law
founding of the PRC in 1949, the Communist insists on the Criminal Law’s guiding principle
Party of China (CPC) adhered to Marxist-Leninist of using education as the primary means and
doctrine; the police and local security commit- punishment as the auxiliary means of handling
tees worked hand in hand to control residents’ juveniles who commit crimes (Qin and Huang
freedom and combat crime. Both public security 2010). The PJDL stipulates that a juvenile who
organs are generally seen as important instru- needs stricter control may be detained and reha-
ments of the state that served the ruling class by bilitated in a juvenile detention center (com-
controlling and oppressing antagonistic classes in monly referred to as “Re-education through
the early 1960s. Labor”) pursuant to the Criminal Law and the
Wong (2004) argues that, until the 1979 JPL. Scholars (Zhao 2001; Wong 2005) have
reforms, the legal profession and courts were asserted that the PJDL can be seen as a special
inactive. Until the PRC committed itself to eco- law formulated to tackle the “unhealthy behav-
nomic reform in the early 1980s, policy makers, ior” (i.e., minor delinquency) and “serious
by default, had to uphold an unshakeable con- unhealthy behavior” (i.e., serious delinquency)
viction that the socialist state is a perfect soci- of juveniles who are not yet convicted
ety. While admittedly only a transitional phase offenders.
26 Evolution of Restorative Justice Practices for Juvenile Offenders in the People’s Republic of China 395
Police
(Public Security Organizations)
Bangjiao Procuracy
(Assisted education) (Procuratorate)
Informal caution
Suspended
Prosecution
prosecution
Restorative
Restorative Work-study Juvenile court
Supervised practices
work / practices schools
community
services
cases of delinquency that do not need continuous reprimanded by a judge and sent back to their
attention may be referred to the units under the own neighborhood to receive care from commu-
administration of the Education Bureau or the nity supervision teams. RJ programs may be
local neighborhood committees for follow-up. used in conjunction with this sentencing option.
Bangjiao may be arranged by members of the Community supervision is normally used along
local population acting either separately or along with neighborhood bangjiao or community cor-
with local groups such as neighborhood commit- rection programs. Bangjiao, run by neighbor-
tee members, neighborhood police, teachers, and hood committees together with local police, is
private company bosses. Adolescents and their not new. However, community correction is
parents are usually reprimanded by the authori- rather novel and unique to the PRC. Chinese
ties, with some asked to compensate their vic- community correction teams employ “justice
tims; they are then closely guarded and supervised social workers” to supervise and provide coun-
by a group of “respectable” community elders or seling services to juvenile offenders during the
adult volunteers. Juveniles may also be referred supervision period. Community correction is
for study at residential work-study schools, which applied not just to juveniles but can be used as a
are similar to boarding schools or delinquent community-based treatment for any offender
homes (Lui 1991; Wong 1999; 2001). given a suspended sentence or for ex-inmates on
For formal measures, the police, the People’s parole after serving a minimum portion of their
Procuracy, and the courts are the state organs sentence as prescribed by a judge. It is thus a
responsible for investigation, prosecution, and kind of probation or after-care service order.
all trial proceedings. The roles and social func- Interestingly, before community correction pro-
tions performed by the police and courts likely grams formally emerged, bangjiao was the most
need no further explanation. The People’s common form of community-based treatment
Procuracy is a state organization with the statu- program for delinquents (Wong and Mok 2011).
tory power to oversee the administration of jus- For custodial treatment, “Re-education through
tice in its role as the investigative and supervisory labor” is the formal correctional program tailor-
branch of the judicial system. In criminal affairs, made to incarcerate and rehabilitate juvenile
it is responsible not only for prosecutions but offenders in contemporary China. Convicted
also for supervising the legality of the entire juvenile offenders are sent to an institution for
criminal process, from the police investigation between 1 and 3 years by a juvenile court. The
and preliminary hearing, through the ruling of institution uses both work and education as
the court, down to the execution of the sentence. methods of reform though it places more empha-
The People’s Procuracy possesses the discretion- sis on (political and moral) education and man-
ary power to divert juvenile offenders away from datory labor than do similar institutions in Hong
prosecution by applying a measure called “sus- Kong and the UK (Wong 2001).
pended prosecution.” This discretionary power RJ practices can be linked to informal mea-
not to prosecute juvenile offenders has consti- sures under bangjiao arrangements and formal
tuted the favorable conditions from which RJ has measures under suspended prosecutions and sus-
emerged over the past few years (Wong 2005; pended sentences. As a formal measure, restor-
Wong and Mok 2011). ative practices are used in connection with
As shown in Fig. 26.1, there are three main “suspended prosecutions” when the procuracy
options for dealing with convicted juvenile decides not to formally prosecute the juvenile.
offenders—suspended sentence, community Wong and Mok (2011) have described some of
supervision, and custodial treatment. In a sus- the PRC’s current RJ practices. They have found
pended sentence, juveniles do not receive formal that provincial and district procuracies in many
sentencing but are given a chance to join commu- parts of China have been actively experimenting
nity reintegration programs. They are normally with RJ for juvenile offender cases since 2004.
26 Evolution of Restorative Justice Practices for Juvenile Offenders in the People’s Republic of China 397
In recent years, 10 provinces and cities (including Organizational Regulation was issued by the
Beijing, Shanghai, Jianzu, Shangdong, Hunan, State Council in 1989, no criminal cases, even
and Guangdong) have begun pioneer RJ projects minor ones, were dealt with by the People’s
within their juvenile justice systems (Dong Mediation Committee; thus, Chinese scholars
2012). For instance, some district procuracies in did not link People’s Mediation cases with RJ
Chongqing, Liaoning, and Suzhou are running cases, since the former dealt only with civil cases
pilot programs for delinquents who have received (Q.T. Li 2010).
suspended prosecutions, and district procuracies Before the recognition given to Western RJ
in Nanjian, Xuzhou, and Hebei have imple- approaches such as the family group conferenc-
mented restorative projects together with com- ing model by some English-speaking countries
munity supervision for juvenile offenders (Yao in the 1990s, criminal reconciliation or media-
2007). The feedback and evaluations have been tion had long been used as an informal measure
very encouraging. For example, the Procuratorate for dealing with community conflicts and dis-
of Dadukou in Chongqing, the Procuratorate of putes in the PRC. For juvenile and youth crimi-
Suzhou Industrial Park, and the People’s Court nal cases, district authorities in some Chinese
of Gulou in Nanjing used restorative practices provinces have tried to integrate values and mod-
for 20 juveniles in 2004, 107 juveniles in 2007, els based on reconciliation justice into the crimi-
and 66 juveniles in 2009; the juvenile offenders nal justice systems; however, no standardized
all showed progress in correcting their delin- practice has yet been developed. Judicial and
quent acts after the restorative programs legal personnel involved in community commit-
(People’s Procuratorate of Jiangsu 2008; Xin tees, public security organizations, procuracies,
Hua Net 2007, Zhou 2010). Furthermore, RJ judiciaries, and prisons have only recently started
practices are also commonly applied to offend- to try the Western RJ approach to helping juve-
ers who have received a suspended sentence nile offenders. For example, a local committee in
issued by a judge. As more judges become aware Shandong province, a public security organiza-
of the potential benefits of RJ for juvenile offend- tion in Shanghai, some procuracies in Hunan and
ers (Shen and Zou 2010), more juveniles guilty Yuennan provinces, a court in Beijing and
of less serious offences (such as assaults, prop- Xuzhou, and a prison in Foshan have started to
erty crimes, and traffic offences) are being given investigate and run pilot RJ programs for juve-
a suspended sentence with the condition that nile offenders (Xiao 2011; Yao 2007; Ye 2010;
they make reparation to the victims or the com- Zhao 2010).
munity. RJ appears to be not an independent sen- Among the RJ practices so far adopted, crimi-
tence option but an additional condition of a nal reconciliation (xingshi hejie) seems to be the
suspended sentence. Chinese RJ practice that shares values and a prac-
It is worth noting that RJ is not equivalent to tice model with the Western RJ approach.
the services run by the PRC’s People’s Mediation Criminal reconciliation is designed for offenders
Committees. The Chinese preference for media- who have committed minor criminal acts but who
tion is deeply rooted in Confucian philosophy, have shown some degree of remorse during the
which sees social conflict as disruptive of the investigation and prosecution processes (Leng
natural order of life (Wong 1999; 2005). The 2011; Li 2011; Song et al. 2009). Criminal acts
PRC’s People Mediation Committees are such as common assault, theft, deception, and
responsible for handling a wide variety of dis- traffic offences are commonly handled through
putes and minor offences as well as for granting the reconciliation method (Song 2010). Some
divorces. However, they seldom deal with crimi- procuracies, like the ones in Zhejiang province
nal cases even though their enabling ordinance and Taiyuen city, have already developed legal
does not clearly forbid them from doing so. documentation to guide criminal reconciliation
Until the People’s Mediation Committee practices (R.S. Li 2010). Although criminal
398 D.S.W. Wong and L.W.Y. Mok
Table 26.3 Quoting other scholars’ scientific research findings, by key themes
Never quoted scientific research Quoted scientific research
Major themes findings, n (%) findings, n (%)
Theme 1: RJ and Victimology 26 (12.1%) 6 (16.2%)
Theme 2: RJ and Criminal Justice 72 (33.5%) 13 (35.1%)
(excluding juvenile justice) in the PRC
Theme 3: RJ and Juvenile Justice in the PRC 26 (12.1%) 12 (32.4%)
Theme 4: RJ and Chinese Philosophy and Politics 56 (26.0%) 2 (5.4%)
Theme 5: Development of RJ in the West 35 (16.3%) 4 (10.8%)
Total 215 (100%) 37 (100%)
occasionally, and 48.4% did not talk about it at and international references were quoted. Of 252
all (see item 1.2). Concerning how RJ can be articles, 85.3% never quoted any scientific
integrated into the juvenile justice system, 15.1% findings to support their arguments (see
talked about it frequently, 7.5% occasionally, and Table 26.3), 92.9% never quoted any real-world
77.4% did not talk about it at all (see item 1.3). examples of RJ as illustration (see Table 26.4),
Concerning whether RJ can be integrated with and 85.3% failed to cite five or more interna-
Chinese philosophies and politics, 23.0% talked tional references (see Table 26.5). However, the
about it frequently, 30.2% occasionally, and concept of “building a harmonious society” pro-
46.8% did not talk about it at all (see item 1.4). nounced by Hu Jintao, President of the PRC, was
Finally, concerning the emergence of RJ in the frequently quoted. Of the 252 articles, 31.3%
West, 15.5% talked about it frequently, 62.3% quoted this concept to support arguments in
occasionally, and 22.2% did not talk about it at favor of using RJ in China (see Table 26.6).
all (see item 1.5). The above results clearly suggest that most RJ
Table 26.2 summarizes the distribution of the journal authors in the PRC do not link their argu-
key themes. The most commonly mentioned ments to the most recent development of RJ prac-
theme was “RJ and Criminal Justice in the PRC,” tices around the world and that few are fully
which accounted for 33.7%. The second most aware of the evolution and current practices of RJ
common theme was “RJ and Chinese Philosophy in other PRC provinces and districts. The content
and Politics,” which accounted for 23.0%. In analysis revealed that only 37 journal papers
decreasing order, 15.5% focused on “Development quoted scientific research findings as evidence in
of RJ in the West,” 15.1% on “RJ and Juvenile support of their arguments (see Table 26.3); only
Justice in the PRC,” and 12.7% on “RJ and 18 journal papers cited real-world examples of
Victimology.” RJ in either the PRC or in other countries (see
The study also examined whether scientific Table 26.4), and only 37 papers quoted 5 or more
research findings, real-world examples of RJ, international references (see Table 26.5).
400 D.S.W. Wong and L.W.Y. Mok
Table 26.6 Quoting the concept of “building a harmonious society” pronounced by Hu Jintao, by key themes
Never quoted the concept Quoted the concept
of “building a harmonious of “building a harmonious
Key themes appearing in the publications society,” n (%) society,” n (%)
Theme 1: RJ and Victimology 26 (15.0%) 6 (7.6%)
Theme 2: RJ and Criminal Justice 53 (30.6%) 32 (40.5%)
(excluding juvenile justice) in the PRC
Theme 3: RJ and Juvenile Justice in the PRC 29 (16.8%) 9 (11.4%)
Theme 4: RJ and Chinese Philosophy and Politics 36 (20.8%) 22 (27.8%)
Theme 5: Development of RJ in the West 29 (16.8%) 10 (12.7%)
Total 173 (100%) 79 (100%)
Moreover, the journals’ key themes focused on some just repeating the arguments of others with-
how RJ can be integrated into the criminal justice out conducting a thorough literature review or
system and the relationships between RJ and scientific study, few papers reached an acceptable
Chinese philosophy and PRC politics. international academic standard.
Interestingly, in introducing or discussing the To be fair, though, most of the articles have
concepts of RJ and its current uses, most authors been valuable in raising the awareness of RJ
seemed to rely on just a few Chinese sources (Di within the PRC’s academic, social work, and
2005; Wang 2005; 2006; Wu 2002). As most legal fields. Some of the articles were exception-
papers were not based on original ideas, with ally well written and included sophisticated
26 Evolution of Restorative Justice Practices for Juvenile Offenders in the People’s Republic of China 401
reviews of the PRC’s criminal justice practices monly adopted by local authorities. They assert
and discussions of the compatibility of RJ with that RJ could help local authorities save money
traditional Chinese philosophies, including and resources, since formal measures for resolv-
Confucianism. Some of the papers pointed out ing conflicts are rather expensive. Their argu-
the incompatibility of values between the exist- ments miss the key fact that injustices may occur
ing punitive social control model and Western RJ if attention is not paid to power imbalances
practices. Others pointed out the relationship among conflicting parties. As the PRC’s justice
between the immaturity of the current legal sys- system is not based on the presumption of inno-
tem and the integration of RJ into different levels cence, the police or procuracy may urge an
of the criminal justice process. offender to confess in order to solve the case as
Some of the articles dealt effectively with the quickly as possible. Decisions may be influenced
relationship between RJ and juvenile justice as by personal or political considerations rather than
well. These articles observed that the use of RJ to the nature of the offence and the offender’s situa-
treat juvenile offender cases is in line with the tion. It is a pity that so few RJ proponents in the
PRC’s current use of the integrated management PRC understand that RJ is essentially about
approach to tackle juvenile delinquency: RJ empowerment, public participation, reintegra-
administers justice through the participation of tion, and restoration.
juvenile offenders, victims, and other concerned
stakeholders and emphasizes the repair of the
harm done to those affected by crimes and the 26.5 Factors Conducive to the
simultaneous restoration of social relationships Development of Restorative
and social order. Thus, RJ seems to conform to Justice in the PRC
the national juvenile crime prevention principle
of “joint participation and integrated manage- Most of the publications reviewed were in favor
ment” and can also help reduce the cost of formal of RJ. As Table 26.7 shows, 54.4% were strongly
justice programs. in favor of the development of RJ in the PRC,
Unfortunately, most of the articles are aca- 41.6% moderately in favor, and only 4% not in
demically superficial, as the authors fail to reflect favor. The papers did not just advocate the future
in depth on the sociopolitical conditions behind use of RJ but also documented current RJ prac-
RJ’s success overseas. Many authors fail to tices in the PRC. Undeniably, RJ has flourished
acknowledge that RJ’s overseas success has been over the past 5 years in the PRC. Certain factors
dependent on a fair, open, and democratic socio- may have been especially conducive to this rapid
political system. They fail to point out that local development.
PRC police and committees are under the leader- First, RJ shares the traditional Chinese aim of
ship of the municipal government and that the being “against the crime” while wanting to “pro-
administrative staff may thus be politically tect the person” and advocates lenient treatment
biased. The surveyed authors rarely criticize the of juvenile offenders in order to maximize their
corrupt sociopolitical culture of the PRC. future potential. It encourages public participa-
Moreover, debates about how real justice tion, by which conflicts can be settled through
could be achieved in the PRC were seldom negotiation and communication between the
encountered. China’s mediation processes are offender and the victim. Apology and financial
particularly susceptible to the influence of per- compensation are used to remedy the harm done
sonal power and persuasion. Outcomes thus often by the offender, and more constructive means
favor those with close ties to the Communist (such as community service) replace the tradi-
Party or who hold a powerful position in the tional punishments that deprive offenders of their
administration (Wong 2001). However, some freedom. Accordingly, RJ is in line with the guid-
proponents of RJ in the PRC think that RJ fits ing principles of Chinese juvenile justice, which
well into the conflict-resolution system com- focuses on “education, reform, and rescue,” the
402 D.S.W. Wong and L.W.Y. Mok
formula endorsed by the Communist Central Fourth, RJ focuses on the repair of harm done
Party of China. Restorative practices are also in to the victim and the community. It thus fits in
line with the principle of “double protection,” in well with the recent “building a harmonious
which the protection of both community safety society” slogan pronounced by the President of
and delinquents is respected (Qin and Huang the PRC. To build this harmonious society,
2010; Shen and Zou 2010). Communist Party members, government officials,
Second, despite the recent shift in Chinese scholars, and neighborhood committee members
juvenile justice from an informal “societal” to a have to work hand in hand to promote this con-
formal “juridical” approach (Wong 2001), the cept throughout the whole nation, including
Chinese preference for mediation and interper- finding ways to subsume administrative and
sonal harmony seems to be deeply rooted in criminal justice practices under the slogan. The
Confucian philosophy, which sees social conflict restorative model of delinquency control there-
as disruptive of the natural order. In parallel with fore fits perfectly into the mass line ideology,
the recent development of RJ around the world, showing support for both the president’s political
the continued use of bangjiao programs, sus- slogan and the goal of maintaining social
pended prosecution, and suspended sentences to stability.
treat juvenile delinquents is definitely conducive
to the evolution of restorative practices. These
practices are rooted in both Confucian philoso- 26.6 Restorative Justice: The Way
phy and the indigenous Chinese justice practices Ahead
that emphasize the harmony among human rela-
tionships (Wong 2004; Wong and Mok 2011). The number of news items and journal articles
Third, the restorative model of delinquency relating to PRC RJ found in the China Core
control is also compatible with the mass line ide- Newspapers Full-text Database and the China
ology, which welcomes the involvement of indig- Academic Journals Full-text Database increased
enous community leaders. The PRC’s ruling gradually from 122 pieces in 2006 to 204 pieces
Chinese Communist Party believes the mass line in 2010. Obviously, an increasing number of
ideology to be non-refutable, and it underlies all researchers, practitioners, and reporters have
kinds of social security practices (Zhong 2009). recently been writing articles exploring and dis-
Criminal justice organizations such as the police, cussing RJ. These have facilitated the rapid evo-
courts, and procuracies, all following orthodox lution and development of RJ in the PRC. The
Marxism, believe that social control is fruitless ideas and practices of RJ are likely to continue to
without mass involvement. Therefore, substantial develop in both the academic and professional
emphasis is placed on mass grassroots participa- sectors. The conclusions listed below can be
tion. Crime, delinquency, and social conflicts are drawn from recent RJ developments.
matters to be tackled by government officials act- First, a national legal framework and standard-
ing together with indigenous community leaders ized set of regulations for the proper use of restor-
for the ultimate purpose of building a utopia. ative practices should be developed to foster the
26 Evolution of Restorative Justice Practices for Juvenile Offenders in the People’s Republic of China 403
wider application of RJ. According to the China are conceived and whether Western RJ models
Yearbook Full-text Database, the term “restor- should be incorporated into the current criminal
ative justice” had never appeared in any of the justice system without altering them.
central government’s yearbooks but appeared 47 This chapter has examined the current juve-
times in the yearbooks of regional governments. nile justice system, the emerging restorative prac-
For lack of a central legal framework, district tices, and related issues in the PRC. Obviously,
authorities employ their own models of restor- the PRC’s RJ movement is only at the initial
ative practices while handling criminal cases, stage. RJ practices should be carefully developed
with practices varying across cities and prov- and implemented on a trial basis and then
inces. Restorative practices are sometimes mis- reviewed as they evolve. Thus, while RJ has
used in some areas. For example, we have seen developed rapidly over the past decades, scholars
people treat RJ as a way to buy a shortened sen- and PRC policy makers must devote more energy
tence. If RJ is not firmly linked to the current to formulating a just and fair mechanism that can
criminal justice system, many potentially effec- allow RJ to flourish and be healthily integrated
tive RJ practices might remain the objects of aca- into both the formal and informal social control
demic debate or experimentation, outside the systems for the benefit of juvenile offenders and
mainstream criminal justice system. the broader community.
Second, in addition to a clear and legal restor-
ative practice foundation, local communities’
practical experience and wisdom concerning the
promotion of RJ are equally important. The active
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The Retrospect and Prospect
of China’s Victimology 27
Wang Dawei and Tan Longfei
Victimology: China’s scholars define Victimology up to subject construction. From this it is obvious
as a branch of science that studies the phenomena that the development of Victimology has its his-
of victimization, victims, the key factors of vic- torical inevitability in China. This paper briefs the
timization, the restitution of victimization, and the summary of the present situation of Victimology
prevention of victimization. Before the founda- that has developed in China for more than 30 years,
tion of the People’s Republic of China in 1949, summing up the existing research and looking
Yan Jingyao, a China’s well-known criminologi- forward to the direction of its development.
cal expert, had referred to the issue of victims in
his criminological research. China’s Victimology
has developed for more than 30 years. The devel- 27.1 Brief History of the Origin
opment of Victimology comes with the develop- and Development
ment of Criminology and is in the process of of Victimology in China
internationalization. Since 1979, when China
began the economic reform and opening up to the 27.1.1 Origin of Victimology in China
outside world, in the course of pursuing fairness
and justice and strengthening the work in guaran- Compared with the beginning of the studies of
teeing human rights, the Chinese society has paid Victimology around the world, which sprang up
attention to a growing number of groups of peo- in the middle of the twentieth century, it started
ple, including such a special group of people as relatively late in China. China’s Victimology
the victims in crimes who are focused gradually. began in the early 1980th and had a short history
The protection of victims’ rights and interests has of studying. Influenced by the “cultural revolu-
been put on the agenda by legislative and law tion” in the middle of 1960s, the crime rate in the
enforcement agencies and social organizations late 1970s reached its peak for the third time. The
successively. Relative laws, law enforcement, and study on crime problems only about offenders
social activities bring about realistic demands for and crime countermeasures lost its effectiveness
the research on Victimology. Thus, many scholars on controlling crimes, so scholars began to pay
made further academic explorations in Victimology attention to the numerous victims hidden behind
theories and its practical applications, and worked crimes. “Victims take a large portion of the total
population in all the countries. The accumulated
number of victims around the world in 10 years
may be close to the total population.” As the
W. Dawei, Ph.D. (*) • T. Longfei, Master
world’s most populous nation that makes up one
Chinese People’s Public Security University
Beijing, China fifth of the global population, China has large
e-mail: [email protected]; [email protected] numbers of victims. Thus, the development of the
study of Victimology in China is promoted by faction with the public security work, the
objective requirements including solving the proportion of daring to be witnesses, and
existing problems of victims, maintaining a good the proportion of daring to walk at night.
social public order, and protecting the rights and Based on the surveys, scholars compiled
interests of victims. “Do You Have A Feeling of Public Security?—
the Basic Theories and Survey Methods of
Public Security Perception.” In addition, some
27.1.2 Development Process scholars also did special research on victims
of Victimology in China and beginning research on victim issue and
Psychology in Chinese society cases.
1. Victimology in its early stage of development In the aspect of education and train men for
Victimology (from the middle of the 1980s to profession, faculties of law of some colleges
the late of the 1980s). and universities and some public security col-
Before the middle of the 1980s, the study leges offered special lectures and made active
on Victimology in China was a blank for a efforts in exploring popular issues about
long period. Although a few papers could be victims.
seen in newspapers and magazines, they were In relevant practice, as a series of laws and
just the preliminary introduction of the results regulations passed at the end of the 1970s set
of foreign research. Victimology with Chinese the legal system construction in China on a
characteristics was to be explored. During this normal road, since beginning period of 1980s,
period the studies of victims are mainly trans- they has been developing and becoming more
lations and introductions about relative foreign perfecting in the law enforce field, people
results of research. Some scholars concen- began to pay attention to the issues concerned
trated their studies on the litigant positions and with the rights and interests of victims and the
the rights and interests of victims in criminal system construction.
suit. In this period the studies of criminal laws In international communications, Chinese
and regulations were the key of Victimology People’s Public Security University invited
research. In the late of 1980s, basic theories of Hans Schneider, the top expert of the World
victims were developed. Studies in this period Society of Victimology to give a special lecture
laid foundations for the research on following of Victimology in 1987. The introduction of
problems: the phenomena of victimization, the relative information of International Symposium
structure and tendencies of victimization, the of the World Society of Victimology and the
causes of victimization and the way some per- research courses about victims triggered
son become victim, the victim–offender rela- Chinese scholars’ great interests. Moreover,
tionship, personal characteristics of victims many scholars of Criminology came to China
and their social environment, the classification from England and America for academic
of victims, the predication of victims, the pre- exchange, and they introduced knowledge of
vention of victimization, and the compensa- Victimology in every aspects and their pioneer-
tion legislation for victims. ing research to Chinese scholars.
As for the research projects about During this period, although there were
Victimology, in the project “The Research on more studies of the introduction of foreign
the Index and the Appraisal of the Public research material, but less pioneering research;
Security Perception,” scholars made active more decentralized research but less system-
efforts in surveying and studying the follow- atic research; more studies that combined in
ing problems concerned with victims: the relative subjects, but less self-contained stud-
comprehensive evaluation of the security of ies; more personal research, but less collabor-
society, the evaluation of the fairness of ative research, Chinese scholars began to pay
law enforcement, the evaluation of the satis- attention to the rights and interests of victims
27 The Retrospect and Prospect of China’s Victimology 409
and their special problems and accumulated In teaching and train men for profession,
experience for the future studies. many Colleges of Politics and Law set up
2. The first stage of the development of courses of criminal Victimology. For example,
Victimology (in the 1990s). China’s University of Political Science and
This period is the first stage of the develop- Law, Southwest University of Political Science
ment of Victimology in China. In this period, and Law, and Chinese People’s Public Security
the works of Criminology and textbooks all University respectively set up relative courses
began to have special chapters discussing the in both undergraduate and graduate courses.
problems of victims. Although a fair propor- Many monographs by scholars such as Guo
tion of the academic papers during this period Jianan were also used in teaching. Special
focused on the litigant positions and the rights chapters and sections about Victimology were
and interests of victims in criminal suit, they designed in relative Criminology textbooks.
had began to emphasize studies of victims in Some postgraduates and doctoral candidates
part of crimes. The studies included analysis also wrote master’s theses and doctoral disser-
in victim Psychology, victims’ impact on tations concerning Victimology.
criminal behavior, and the important part that In relative practice, the research on the liti-
victims played in preventing crimes. gant rights and interests of victims and their
In the study of basic theories, the range of positions found that the revised “Code of
victims was specified. Many research methods Criminal Procedure” still had problems in the
and a scientific research system were also for- perfection of victim protection. In criminal
mulated in this period. Chinese scholars also legislation and law enforcement, people often
began to try to make investigations of victim- attached importance to cracking down on
ization. In 1994, with the technological assis- crimes, but did not pay adequate attention to
tance from a project launched by the United the causes of crimes. The results which led to
Nations and Canada, Chinese Ministry of measures on legislation and law enforcement
Justice carried out the first criminal victim were confined to “valuing the fight against
survey (2,000 samples) in Beijing, China, lay- crimes but belittling the protection of vic-
ing foundations for the future criminal victim tims.” In this period, law practice was greatly
survey. improved. For instance, some of the rules
On the research projects about Victimology, about the litigant rights and interests of vic-
in addition to the investigation project by the tims were adopted in the revised “Code of
United Nations mentioned above, the Socio- Criminal Procedure” in 1996. The promulga-
logy of Chinese Academy of Social Sciences tion of “The Law on the Protection of Minors”
directed a significant project on Chinese in 1991, “Administrative Punishment Law” in
People’s social psychological research in the 1996, “Elder Rights Protection Law” in 1996
period of China’s social transition. In this and other rules and regulations lay legal
project, some scholars conducted a special grounds for the protections for different
investigation of public security perception in victims.
different cities. In the meanwhile, the book In international communications, the inves-
“The Research on Crime Causes in China” tigation results about victims in Beijing were
(1998), as the result of the important fund issued in the “Criminal Victimisation in the
project of social science for Chinese crime Developing World” published by United
prevention directed by Wei Pingxiong and Nations Interregional Crime and Justice
Wang Shunan, had a chapter of “Factors of Research Institute. Wang Dawei gave a speech
victimization in crimes” wrote by Wang about juvenile victims in China at the 8th
Dawei. It gave a systematic and in-depth international Victimology conference con-
elaboration on the basic concept, factors, and vened at Adelaide in Australia. Kang Shuhua
situations of victimization. attended the 9th international Victimology
410 W. Dawei and T. Longfei
conference in 1997. In 1998, Wang Dawei accidents, victims of terrorism crimes, etc. At
attended the 12th international Criminology the same time, scholars began to study the
conference in Seoul, Korea and made a key- interactions between victims and offenders.
note speech of “Comparative Study of Especially, the studies of the transformation of
Victimization between China and the Other victims into offenders and crimes resulted
Eleven Developing Countries.” Six scholars from victims’ delinquency were increased
from the Chinese Society of Criminology notably. The research on relief system for vic-
attended the International Society of tims, problems of restorative justice, the pro-
Criminology and made academic connections tection for rights and interests of victims was
with foreign researchers and research insti- further developed. The studies are mainly
tutes that study Victimology. concerned with crime punishment and crime
The developmental characteristics in this prevention in recent years, emphasizing how
period showed that the subject construction of to deal with crime problems and crime phe-
Victimology had made preliminary progress, nomena from victims’ angle. Scholars began
embodied in the construction of basic theories, to put unprecedented emphasis on the meth-
the research on the issues, and breakthroughs ods of empirical study.
in research methods, research contents and the As for research subjects about Victimology,
study of major projects. Relative laws were there were the project “The Measurement and
also formulated. People not only began to pay Appraisal of the Social Composite Indicator
attention to victims who abuse of power, but of Guangzhou City” launched by Wang Dawei,
also made extensive explorations in relative the long-term research on the subject of vic-
victims of other types appeared in social issues tims by Guo Jianan, the pilot project of state
in China. All these promote the development aid for criminal victims launched by the
of Victimology. Supreme Judicial Court, the topic about the
3. The period of multidirectional development establishment of the relief system for victims
in Victimology (since the twenty-first of criminal cases in Hainan Province. All these
century). were the active efforts made in the academic
In this period, the study of Victimology studies on Victimology in China during this
was further expanded and deepened in both period. New breakthroughs were also made in
breadth and depth. Special academic study the study of Victimology teaching, such as
societies were also established. At the Chinese Wang Dawei was awarded the national excel-
Society of Criminology Annual Conference lent course in 2007 for his special chapters
convened at Haikou, China, in 2011, Chinese expounding problems of Victimology in the
Victimology Association was established as a Criminology project and the construction of
branch of Chinese Society of Criminology. relative Web site. To construct better relative
The Association appointed Zhang Ling as courses, Li Wei especially composed the text-
chairman, Zhao Guoling, Wang Dawei and book “Criminal Victimology”. The book elab-
Liu Zhiyuan as deputy directors, Zhao Ke as orately introduces the history of Victimology,
consultant. Praiseworthy progress made in victims and victimization phenomena, the
multidisciplinary explorations in Victimology relationship between victims and offenders,
and trials of different levels in researching on victimization and victim prevention, theory of
comparative study among different countries Criminal Victimology, victims of criminal jus-
brought new characteristics to the era of tice system, compensation for victims and vic-
Victimology research. In deepening explora- tim restitution, victim assistance, etc., having
tions, some scholars began to narrow down to a positive significance to the understanding of
a certain type of the study of victims, such as the development of Victimology in recent
victims of sexual crimes, juvenile victims, years.“Crime Victims: An Introduction to
victims of family violence, victims of traffic Victimology” by Andrew Karmen was trans-
27 The Retrospect and Prospect of China’s Victimology 411
lated by China’s some scholars. In addition, and explored relative topics. Chinese scholars
since the 1990s, the National Bureau of Census Zhao Ke and Wang Dawei respectively
and Statistics in China has gradually set up an attended the 11th and the 13th International
annual investigation system of security per- Symposiums of Victimology held in Canada
ception of the Chinese people and an informa- and Japan. In 2003, Wang Dawei presented
tion release system, providing data reference the paper of juvenile self-protection and social
for the study of Victimology by the annual protection, entitled by “If…,” at the 11th
reports on the situation nationwide. International Symposiums of Victimology in
In teaching and train men for profession, Montreal. In 2009, Wang Dawei made
there was new development in the courses in speeches on both “On the Comparative Study
Victimology offered by some Chinese politics of Victimization between China’s Guangzhou
and law colleges and universities and public and Other Developing Countries’ Cities” and
security colleges. The contents of victims “On the Prevention Street Robbery through
were often involved in t he explorations and Situational Mock Training ” at the 13th
discussion about criminal problems. Since International Symposium of Victimology in
2000, many young scholars have had interests Mito, and he was elected as the Co-opted
in researching on victim problems in their Member of Executive Committee of the World
undergraduate theses, Master’s theses and Society of Victimology.
doctoral dissertations, and complete their rela- In this period, as China opened wider to the
tive explorations by degree papers. Also some outside world and expanded its foreign
students go abroad to continue their study of exchanges, it organized academic activities
Victimology after graduation, and they are the with both Japan and Korea, promoting the
future generation who will carry forward the international exchanges in Victimology and
studies of Victimology. the development of Victimology in China.
In relative practice, the Law of the People’s China held several Sino-Japanese seminars of
Republic of China on the Protection of the Criminology that involved corresponding
Rights and Interests of Women (2005), the exploration of Victimology. The organization
Law of the People’s Republic of China on the of academic exchanges such as the Seminar of
Protection of Minors (2006), the Law of the the Protection for the Legitimate Rights and
People’s Republic of China on State Interests of Victims in the Criminal Procedure,
Compensation (2010), and the Criminal and the Sino-Korean Academic Exchanges of
Procedure Law of the People’s Republic of Criminal Victims was also the important
China (2012) were revised in the aspect dur- development of the academic exchanges of
ing this period, and thus, the rights and the Victimology in China.
interests of victims were further protected. To In this period, the development of
attain international standards, efforts were Victimology was embodied as followings: as a
made in the legal construction of both legisla- branch of learning, it was further expanded
tive and law enforcement agenies. With respect and deepened in both breadth and depth. It
for international Conventions and Treaties, was researched and explored not only from
they developed their legal systems in a Victimology itself, but also from the multidis-
scientific and modern way. For example, the ciplinary angle. Scholars began to pay atten-
spirit of “The Declaration of the Basic tion to comparative research in different
Principles of Justice for Victims of Crime and countries. With its approach to the interna-
Abuse of Power” was manifested in the pro- tional level, China will improve its relative
cess of legislation and law-enforcement. research contents in the future. Research sub-
In international communications, Chinese jects had new breakthroughs. The subjects
scholars actively attended the International began to have their own characteristics, and
Symposiums of Victimology and discussed began to seek way to an overall consideration
412 W. Dawei and T. Longfei
about the balance between victims and offend- subject is the crime behavior. The victim of
ers, between the rights and interests of victims crimes is defined as the natural person, the corpo-
and other social groups, presenting the devel- ration, and the State1 whose legitimate rights
oping orientation of localization. and interests are offended. As for the definitions
In view of the three developmental stages of victims, different scholars have different
of Victimology in China, the Victimology opinions in the range of victims. Tang Xiaotian
experienced a process of developing from and Ren Keqin (1989), Dong Xin (1993), Guo
scratch to, borrowing experience, exploring, Jian’an (1997), Zhang Zhihui, and Li Wei (2010)
researching and innovating. It has begun to all have defined the type of victims. In the
show preliminary signs of becoming an inde- textbook “Criminology”, co-compiled by Wang
pendent branch of learning. Relevant research Dawei, five basic requirements are put forward
results include two great dictionaries: Crimi- as the constitution of a crime victim, and the
nology, Prison Law, Criminology Dictionary book expounds the related concept of victims.
on Gansu Press, Law Encyclopedia on Beijing In China’s Dictionary of Criminology, it narrowly
University Press—Criminal Jurisprudence, defines the victim of crime. Its definition is the
and over ten special works that introduce natural person, the corporation, and the State
Victimology generally, near ten relative whose legitimate rights and interests are directly
works concerning victimology and law, and offended by other people’s crime behavior.
over ten works concerning the detailed con- There is also another explanation: victims are
tents of Victimology. Chinese scholars and those who are directly offended by the crime
social workers have made remarkable contri- behavior of the inflictive party.
butions for a good social atmosphere for the In China, the scholars put more efforts on
further expansion and deepening of the criminal justice in the study of the cognition of
research on Victimology, so that people from victims. Victims of disasters and other incidents
all social circles can listen to the voice of are studied and explored partly, but it is a pity that
Victimology in a better way in the future to the studies are not carried forward.
promote and improve Victimology.
Their study thereof mostly borrows the relevant of victimization involves many aspects of con-
fundamental theories prevalent in the US and trol, such as that over contextual and social
Japan, which mainly include. factors and the psychological and physical
state of victims. The governmental act is all
27.2.2.1 Theory of Victimization the more important as it becomes increasingly
These theories cover such areas as personal fac- urgent for the government to effectively assume
tors of victimization, exposure of lifestyle, daily the basic responsibility for prevention and
activities, homogeneous groups, and victimiza- control, reform the judicial system, and put
tion. The above theories are mostly considered as into place the relevant relief mechanisms. It is
provocative factors of offensive acts by relevant also necessary for the government to advocate
scholars. All these theories have not formed an and orient the societal approach to social
independent and complete system of study, but values. The study on repeat victimization is of
can only act as factors of analytics for particular particular importance for the protection of
topics of research. Nonetheless, these theories rights and interests of victims and prevention
are significant for the study of the criminal acts. of victimization. There are the theories, which
The on-going study at home is limited to the have been studying by China’s scholars, of
understanding of specific acts of victimization repeat victim.
and the rights of victims. It is evident that such
study has downplayed the value of theoretical 27.2.2.5 Theories of Victim Support
studies. These theories can help check the tendency
of punishment-based social control, and redirect
27.2.2.2 Theories of Victimization the social policies toward preventive measures.
Prevention Nonetheless, their core concept of social support
Scholars at home have carried out studies and still lacks a common index of measure. The
concluded with relevant results in a number of Social Development theory by contrast is a
prevention theories, such as CPTED and defen- macro-approach to the correlation and common-
sive space theory, both based on environmental alities between the social context and the type,
designs, and others including strategies on risk rate and geographical distribution of crimes in
evasion and control (Fig. 27.1). developing countries, thus has offered theoretical
guidance in this regard.
27.2.2.3 Theories of Victimization China still lags behind in terms of the size of
These extend from the first time to the second Victimology researchers, the width and depth of
and third times of victimization, thus encompass- the relevant study, and the transition from the
ing all the processes of victimization, litigation, research results to the real-world applications. It
and possible transition from victims to criminals. seems that we have deviated from the interna-
Many of such studies at home actually dive deep tional trend given the inertia of both Criminal
into one of the above processes, such as the liti- Victimology study at home and the application of
gation status and rights of the large number of the study results to actual practice. The relevant
victims, or the transition from victims to crimi- results were given less credit than they deserve,
nals, or a myriad of victimized behaviors. and fail to effectively orient the practice, particu-
The Victimology studies have made great head- larly on issues of how to promote more emphasis
way in China. on self-defense, -disclosure, and -resistance of
offense in addition to attention to crackdown of
27.2.2.4 Theories of Repeat Victim crimes, how to assist the law enforcement institu-
The current debate on victimization is an tions to reverse the tide of crimes, how to gain
important measure to mobilize the social forces more protection, and achieve better chances of
for the prevention and control of criminal acts recovery from the past physical and psychologi-
and the protection of victims’ rights. The issue cal traumas. All these require scholars at home to
414 W. Dawei and T. Longfei
Victims
Fear of
and protecting the rights of victims.
Crime-prone space
(Allas,1991)
27.2.3 Methodology of Victimology
Indefensible space
High
As for the study of Victimological methodolo- (Cozons,2002)
gies, relevant literature have been available in
China, summarizing the results of explorative Fig. 27.1 Defensible space and changeable social
study by scholars like Zhang Zhihui and Xu dynamics study. Data source: Prepared by Wang Dawei in
reference to relevant materials, 2009
Mingjuan (1989), Guo Jian’an, Wang Dawei
(2003a, b), Zhang Hongwei (2007a, b, c), Lu
Jianping, and Li Wei (2010). The current method-
ologies go beyond qualitative and quantitative annual statistical surveys on Chinese scholars
studies, and extend to the methods of statistical still lag behind, and need to do more practice and
study, survey of the victim and offender, and exploration of empirical study and quantitative
sampling-based victimization study. The qualita- survey in the future.
tive methods include case study, study of sum-
marizing literature, and direct observation. The
quantitative methodologies of Victimology are 27.2.4 Type of Victim
also divided into methods of investigation, inter-
view and content analysis. The criminal victim The victim categorization in China is different
survey in 1994 plays a significant role of learning from that in the western study in light of its dis-
from the methods of international scholars, thus tinct history and social practice. Special argu-
promoting the development of quantitative ments have been devoted to this topic by Tang
Victimology study in China. Unfortunately, so Xiaotian and Ren Keqin (1989), Xu Zhangrun,
far there have been no nationwide victim surveys Zhang Jianrong (1997), Wang Dawei (2003a, b),
in the annual report launched on victims of Kang Shuhua, etc. The typology of victim origi-
crimes, and no institutions have been set up to nates from the in-depth understanding of the
support victim surveys in China.2 Despite Zhang prevalent victims, and insight of the common and
Hongwei’s progress in this arena, the understand- distinct features of victims, as a result of both
ing of the relevant methodologies is mostly a correlative and drill-down research. The types
narrow-down approach. The methodologies at are concluded from systematic categorization on
home mostly borrow from the study results of the basis of logical methods tailored to special
foreign scholars, and have yet to develop their purposes and norms. The scholars at home gener-
own features. The state of methodological study ally agree with the internationally recognized
remains backward, leaving much room for fur- scholars on victim division. In the present prac-
ther progress. tice, the victims are often divided into the follow-
Generally, the Victimological methodologies ing types: Actual or potential victims by actual
at home stem from the foreign investigative occurrence of victimization or not; common or
methods, and have not been adapted to the real special victims by constraints of victims them-
conditions in China. As a result, they have not selves; victims of violence, white-collar crimes,
given full play to the role of investigative research property crimes, etc. in accordance with crimino-
in the Victimology study. Given that China lacks logical theories; victims of homicide, theft, rape,
27 The Retrospect and Prospect of China’s Victimology 415
traffic accidents, etc. in line with the definition of 27.2.6 Factor of Victimization
crimes by the criminal law.
The scholars consider the western standards of Some China’s scholars have propounded
victim division as somewhat valuable to them. They definition of victimization and differentiated vic-
have also developed other insights in this regard, timization contents in the course of relevant
which will not be detailed here. In the context of the research. These scholars include Zhang Zhihui
actual conditions in China, the study on victim and Xu Mingjuan (1989), Zhao Ke (1989), Guo
types should research more on victims of white- Jian’an (1997), Wu Zongxian, Wang Dawei
collar crimes, victims of abuse of power, political (1997a, b), Li Wei (2010), etc.
victims, occupational-hazard victims, victims of The prevalent study in China focuses on the
mental diseases, victims of depression, victims of factor of the propensity of the targeting of the vic-
terrorist attacks, victims of telecom fraud, victims tim by the offender, the factor inducing the
of disasters, victims of public order events, etc. offense, and the conditions and other relevant fac-
tors of victimization. The victimization factors
are approached from three levels of pre-, during-,
27.2.5 Phenomena of Victimization and post-victimization, with the emphasis placed
on the relationship between victimization and the
Relevant research has been underway from aspects causal system of crimes. The victimization study
of the concept and forms of victimological phe- has had profound impact on the actual social con-
nomena by scholars like Zhang Zhihui and Xu ditions of the country, helping all kinds of parties
Mingjuan (1989), Zhao Ke (1989), Guo Jian’an concerned gain better understanding of criminal
(1997), Wang Dawei (1997a, b), Xu Zhangrun factors, detect and handle criminal cases, and pre-
(2004), Zhao Guoling (2009), and Li Wei (2010). vent crimes and victimization in the right manner.
Over the past few decades, the phenomena of Other scholars of the country have also probed
victimization have taken the form of victim types. into the victimization (factors) study from aspects
The views on these phenomena differ. One of nature of key-factor of victimization, factors of
regards these phenomena as of social nature, or victimization, conditions of victimization, envi-
social phenomena composed of different facts ronment of victimization, inducement of victim-
under specific temporal and spatial conditions. ization, experience of victim, goods of victim,
Another view considers these phenomena as the potential victimization, compliance with victim-
external form of the victim and victimization ization, and degrees of victim–offender relation-
event, and their relation to the related crime under ship. There is still much room for further study on
specific temporal and spatial conditions. The issues of victimization and other factors.
above process of the present focus of China’s Given the impact of “9–11” Event and other
scholars include the statistical understanding of incidents posing serious threats to the public order,
victims and offensive acts, and the real experi- and the progress in risk control and other relevant
ence of the victimized that may reflect the true fields, the victimization study has gradually
nature of victimization. Furthermore, other schol- shifted the focus to risk management, thus result-
ars have expressed different views on all of phe- ing in a new approach to victimization factors
nomena of victimization. Therefore, deeper study from aspects of victimization risk perspective.
is needed on the interactive process and correla-
tions under certain temporal and spatial condi-
tions of the victimization. 27.2.7 Relationship Between Victim
In light of the distinct social reality and the and Offender
criminal judicial system, as well as other actual
conditions of China, the study on victimization’s China’s Scholars, such as, Zhang Zhihui and
phenomena should be placed in the context of Xu Zhangrun (1989), Wang Dawei (1996),
social transition. Wu Zongxian, Zhang Jianrong (1997), etc. have
416 W. Dawei and T. Longfei
Fig. 27.2 The circumstances figure of crime and victim. Data source: Prepared by Wang Dawei in according with the
relevant materials, the year of 2012
Fig. 27.3 Cognition framework. Data source: Prepared by Wang Dawei in according with the relevant materials, the
year of 2009
Fig. 27.4 Crime and victim diagram. Data source: Prepared by Wang Dawei in according with the relevant materials,
year of 2009
published a thesis on the Comparison of theory to the concrete evaluation systems, and
Litigation Status and Rights of Criminal Victims has given a special lecture of victim evaluation in
in China and Australia. Sun Caihong published the undergraduate course of Introductory Theory
a thesis on the Asia Crime Victims Compensation of Crime Evaluation.
Legal Comparative Study International Murdered Chinese scholars believe that the evaluation of
Comparison and carried out the relevant research. crime victim can be divided into four parts:
In Wang Dawei’s papers, The Comparative demographic factors, pre-victimization factors,
Research of Victimization between China and during-victimization factors, and post-victimiza-
the Other Eleven Developing Countries and tion factors; this is the basic framework and sys-
A Comparative Study of Victimization between tem of victim evaluation. In particular the
China’s Guangzhou and Other Developing evaluation of juvenile crime and victimization
Countries’ Cities, the author described and from a risk perspective, starting from the risks
explained the number of victimization, the vic- associated with theory of perception of the mur-
timization rates, the reporting rate, reasons for der and factors of victimization in the induction
not reporting crime, the degree of satisfaction and mutual influence of factors of victimization,
with police, criminal, family security preventive the phenomenon of the murder, the evaluation of
measures, the views on different typical penal- the potential victim protection measures. Beyond
ties of comparison between China and other that, it also relates to the victim evaluation of the
developing countries, common and special prob- victim of violence, victim of suicide [how does
lems, especially the point of view that the vic- one asses a person who has committed suicide?],
tims in China will gradually developing situation victim of network crime, and victim of property
with the more international characteristics. crime and so on (Fig. 27.4).
In related comparative study, the research of In the practice of crime and victim evaluating
Chinese scholars has developed from a general operation, the emphasis is from the choice of index
view into deeper analysis and comparative to the foundation statistic analysis, and thus the
study—in the period of imitation selectively. complete crime and victim index system is con-
structed. In the research of Guangzhou public order
indexes evaluating system, Wang Dawei made a
27.2.10 Victim Evaluation systematic design of the victim index in accor-
dance with the experience of international victim
As to the Victim Evaluation, Zhang Honge, Wang survey, which was a good attempt of overall victim
Dawei (2009a, b, c), Li Wei (2010), etc. have all evaluation. Victim evaluation has become an
carried out the relevant researches. Wang Dawei important area associated with other disciplines; it
has made the systematic introduction from the needs the deeper exploration by Chinese scholars.
27 The Retrospect and Prospect of China’s Victimology 419
damages and the right to legal aid; setting up assistance, financial assistance, medical assis-
some systems of national compensation and res- tance, psychological assistance, public education,
titution for victims as well as establishing the etc. Victim compensation is given by the govern-
social public order system for the protection of ment to the victims. It is applicable when the crim-
victim rights. inal is punished and cannot restitute the victim’s
damage. Although there are some countermea-
27.3.1.2 Role of Victim sures of restitution, China has not yet established a
Some Chinese scholars, Pei Cangling, Wei victim restitution system by now, which is, to a
Tong, Xu Yongqiang (2003), Lei Tang, Liu certain extent, detrimental to the protection of the
Donggen, and other scholars, have conducted rights of victims. In the future, China should
research on the issues of the role of victim. increase legislative support for victim assistance
Since China enacted the first Criminal Procedure and restitution, and set up the relevant law system
Law in 1979, the academic circles have different of providing victim assistance and restitution.
views on the criminal proceeding in relation to Chinese scholars have conducted in-depth
victims. Embodied in this law are four main studies on criminal reconciliation, restitution,
proposals: first, propose for the victim the same victim fault, and judicial rights protection of vari-
role as witness. Second, that the role of victim ous types of victims, which has accelerated
be a contesting party standing beside the public amendments to “Criminal Law of the People’s
prosecutor. Third, that victim in the indefinite Republic of China,” “Law of the People’s Republic
position is similar to but different from the wit- of China on State Restitution” and other laws,
ness. Fourth, that victim will be an independent and highlighted the protection of relevant rights
litigator with independent role. In 1996, China of citizens. The practice of some new judicial
made a modification to “Criminal Procedure reforms in China will help scholars acquire some
Law,” giving the victim the role of litigant in experience. Other relevant systems will be fur-
the law, and giving the victim some of the same ther developed and improved with the reform of
rights as litigants. These rights are of vital China’s judicial system.
significance and highlight the litigant role of
the victim. This modification to the law causes
much discussion in the academic circles, where 27.3.2 Victimological Issues from
scholars offer some modifications and propose the Sociological Perspective
improvements. It is expected that the role of
criminal victim in China will be furthered in the The development of Victimology is inseparable
future. from social development and relevant hot social
issues. Using the experience derived from
27.3.1.3 Assistance and Restitution Sociology, and applying the sociological research
for Victims perspective will broaden the research area of
In China, Guo Jian’an (1997), Luo Dahua (1983), Victimology, and promote its development.
Ma Guo’an (2002), Mo Hongxian (2007), and Some China’s scholars have conducted research
Zhang Hongwei (2007a, b, c) have studied victim on Victimology in terms of vulnerable groups,
assistance and restitution, and consider that network society, urbanization, and other social
China’s assistance to victims mainly concentrates issues.
in two aspects: first, victim assistance provided by
trade unions, women’s federations, Communist 27.3.2.1 Relevant Vulnerable Groups
Youth League, civil affairs department and other Kang Shuhua, Wang Dawei (1997a, b), Xiao
social organizations; second, legal assistance for Jianguo and Yao Jianlong (2002), Ji Hongguang
victims as per the specifications of “Regulations (2004), Lu Shizhen, Ma Guo’an (2005), Qi
on Legal Aid” (enacted in 2003). Victim assistance Yanping, Lu Deping, and Lu Yulin have studied
mainly includes intervention assistance, litigation vulnerable victims groups, and put forward their
27 The Retrospect and Prospect of China’s Victimology 421
Prevention and Control.” Chen Fengyun et al. the perspective of social management develop-
studied the environmental impact of crime and ment strategies.
victimization in urban fringe areas from the point Chinese scholars have studied the following
of view of environmental behavior studies. Du eight aspects: the reform of social management
Debin et al. studied the location choice via the system, reform of social public order manage-
mathematical simulation of urban crime and for- ment system, reform of social service system,
eign urban crime prevention and prevention of reform of social work system, reform of social
victimization. Weng Li et al. preliminarily dis- security system, reform of social emergency sys-
cussed the theory of crime prevention and control tem, reform of community management system,
in urban planning. Xu Leiqing reviewed the study and the reform of social management leadership
and practice of “Crime Prevention through system and working mechanism. In relation to
Environmental Design” over the past 30 years. emergency mechanism reform, adopt uniform
It should be noted that China is currently dispatching and provide services for victims from
experiencing a social transition period. The speed the aspects of social early warning and social
of urbanization is accelerating with the associ- mobilization, etc. For community system reform,
ated risks changing accordingly. The strength- encourage victims to take an active part in com-
ening of urban social public order should be munity management, so as to enhance their com-
closely connected with relevant studies on urban munity participation; the reform of leadership
Sociology. system and working mechanism to guarantee the
implementation of protecting victims’ rights in
terms of relevant system reformation. Accordingly,
27.3.3 Victimological Issues from the the reform of social management system realizes
Perspective of Study Public the transformation from the management of the
Administration only subject—the Country into the management
of multiple subjects—the government, social
Since social transformation started in China, organizations, community organizations and the
much importance has been attached to Public public. Scholars will conduct more in-depth
Administration, and relevant research has focused exploration on how to better protect victims’
on the management of governmental organiza- rights and interests in terms of social manage-
tions. It has also covered the management of ment systems.
general social public organizations, public All the scholars’ discussions will greatly pro-
welfare organizations, nongovernment organiza- mote the role of victim protection and assistance
tions (NGO), and nonprofit organizations (NPO). system in China’s social construction and facili-
The research also focused on many constructions tate the development of Victimology.
beneficial to victims. Public management service
concerning victims has also changed. Chinese 27.3.3.2 Emergency System of Social
scholars have conducted research projects in Management
terms of social development strategies, social Zhang Chengfu, Dong Keyong, Xue Yuan, Hong
emergency mechanisms and social evaluation. Dayong, and Guo Taisheng (2006) have studied
These are important issues of Public the emergency system of China’s social manage-
Administration and promote the development of ment and achieved certain results.
Victimology in China. In the early twenty-first century, China has
experienced various major social events, such as
27.3.3.1 Development Strategies Beijing Olympics, Shanghai World Expo,
of Social Management Guangzhou Asian Games, etc. China’s crisis
Dai Junliang, Hou Yan, Ding Yuanzhu, Cao management and emergency response mechanism
Jianguang, He Zengke, and Li Wei (2010) have have been constantly improved. Promoted by
conducted research related to Victimology from many scholars’ academic research, the Chinese
27 The Retrospect and Prospect of China’s Victimology 423
government has formulated a series of laws and relevant research. For example, in March 1994,
emergency plans involving major critical areas, experts from China’s National Planning
and put forward special emergency plans for pub- Commission (current National Development and
lic events, which play a significant role in stan- Reform Commission), China’s National Bureau
dardizing emergency response, protecting victims’ of Statistics, China’s Renmin University, and
life and property, and safeguarding national secu- Chinese People’s Public Security University
rity, public safety, environmental safety, social formed the research group for social public order
public order, etc., while protecting the rights and evaluation; the Department of Sociology of
interests of victims of terrorism, and victims of Tsinghua University organized the “Social Public
major riots and other social events. order” Research Group to specifically study the
In China, although the construction of emer- social public order and social situation in Beijing;
gency response system and mechanism has made the Shanghai Municipal Government constructed
great progress, the country is still facing a grim a basic data platform for social public order man-
situation in the area of social emergency response agement in 2007, to analyze the social public
resulting in some emergency problems not being order situation through 52 quantitative indicators.
adequately solved. Hence, scholars of public Scientific and standardized public order
management and other disciplines (including management evaluation has a key role in improv-
Victimology) should carry out more collabora- ing the overall image of the region, evaluating
tive research on the protection of victims’ rights social public order decision-making, and evaluat-
and social stability, promoting the study of ing social public order performance. Currently,
Victimology. the annual public security feelings report is avail-
able for reference. As per domestic and foreign
27.3.3.3 Social Evaluation literature, although there are still many inadequa-
Yan Yaojun, Wang Dawei (2004), Qin Liqiang, cies, the development of public order manage-
Wang Guang, and Wang Ding (2010) have car- ment evaluation has shown the following four
ried out researches on social evaluation. trends: the combination of official evaluation and
Over the past 100 years, various agencies and social evaluation, the combination of subjective
academic organizations have explored the evalu- indicators and objective indicators, the combina-
ation of social and public management and the tion of process and result, and the combination of
continuous improvement of social public order collaboration and technology.
management evaluation system. Chinese scholars The research on social evaluation is an impor-
believe that the development of public order man- tant measure for higher scientific level and
agement evaluation can be broadly divided into democratization level, and will have a positive
five stages: the stage of adopting relevant statis- effect on the decision-making of public order
tics for evaluation (1829-the beginning of the management in China. In addition, the publica-
twentieth century), the stage of evaluation based tion of relevant scientific methods, scientific
on crime types (the early twentieth century— research procedures and victims related issues
1930s), the stage of evaluation based on multiple will promote the study of Victimology.
objective indicators (1930–1970s), the stage of
separate evaluation of subjective and objective
indicators (1970s, 1990s), and the stage of com- 27.3.4 Victimological Issues from the
prehensive evaluation of subjective and objective Psychological Perspective
indicators (1990s to present).
Since the early 1990s, China started to empha- In the early 1980s, Chinese scholars already had
size the study and implementation of public order some explorations on the issue of victims from
management evaluation by relevant Chinese the psychological perspective, and published a
departments, and special groups have been estab- number of professional articles and academic
lished by the central and local governments for papers as well. The book titled “Psychology of
424 W. Dawei and T. Longfei
Victims,” published by Ren Keqin in 1997, con- transforming process from victim to offender was
ducted a systematic and complete interpretation also studied. This helps promote the protection of
on psychological problems of victim, deepened victims’ rights and helps to better control and pre-
such psychological viewpoints as victims’ differ- vent additional crimes, especially, where the
ent types of psychological phenomena, psycho- offending party may have previously been a vic-
logical phenomena in the developing process of tim himself.
victim behavior, victim psychological issues of In psychological researches, some scholars
different nature, comprehensive problems of vic- focused on typical victims such as serial crimes,
tim Psychology, and supported the development victim psychological characteristics after the
and improvement of Victimology. Currently, injurious act, and typical victims in large-scale
domestic Victimology mainly analyzed victims’ domestic events and activities. Their psychologi-
mental activity, psychological behavior in the cal features, causes, as well as attitudes were spe-
course of criminal legal proceedings, psychologi- cially valued. They not only stressed on the
cal reactions and characteristics during the pro- persistence and diffusion of victims’ state of
cess of victimization, psychological motivation mind and their weak mentality, analyzed the rea-
of transforming from victims into offenders, sons why such situations occurred but also stud-
offenders’ punishment and restitution, redemp- ied their social cognition and attitudes after the
tion for victim psychological comfort, etc. Some injurious act. Such methods as observation, inves-
scholars in China also explored and researched tigation, tests and experiments were applied in
such as related to victims, public security feel- serial murder cases to study influencing social
ings surveys, psychological problems of disasters factors, Psychology and motivation accounting
and accidents, and victim psychological interven- for offenders’ transformation from a victim into
tion involved in many well known cases with a an offender. In this way, one may find and dis-
certain degree of innovation. cover the transforming process between victims
and offenders, towards pick-uping the rights of
27.3.4.1 Victims Involved in Serious and potential victims, and can make greater efforts in
Major Cases upgrading the roles of victims. The case of Yao
Some scholars like Luo Dahua (1983), Ren Keqin Jiaxin in 2011 was quite an opportunity for explo-
(1997), Wu Boxin, Li Meijin, and Zhao Guifen ration for China’s scholars in the research of vic-
carried out relevant studies on psychological tim Psychology in major cases. They also carried
aspects of victims. out research and exploration on posttraumatic
During the law enforcement agencies under- stress disorder of victims (post-traumatic stress
taking the policy of cracking down crime period, disorder; PTSD), which had a close relationship
Chinese society made great efforts to control vari- with the development of Victimology.
ous criminal activities in the severest way. In these Research in this aspect had an active effect on
cases, a considerable number of offenders (recidi- finding out psychological problems of recidivism
vism, recidivists) in notorious and well known and recidivists and protecting the rights of
cases had been victims themselves before com- victims.
mitting their delinquent acts. The psychological
changes of victims and psychological process of 27.3.4.2 Public Security
transforming victims into offenders after the inci- Feelings Survey
dent had been given much attention and researched To public security feelings, as a psychological
by relevant scholars. The professors, in psycho- phenomenon, is also an important subject in
logical field, like Li Meijin in her research project, Psychology in China. Scholars including Wu
made a detailed study on offender psychological Zongxian, Zhang Pan Shi, Wei Wang, and Juju
condition involved in some serial killers. They Wang performed relevant researches in this area.
analyzed offender psychological transformation A wide view of all the definitions of public secu-
affected by the occurrence of victim before the rity at home and abroad, they generally involved
criminal behavior in serial crimes. Moreover, the the following four aspects: subjective concerns
27 The Retrospect and Prospect of China’s Victimology 425
about existing crimes; subjective preservation security feelings, in order to form a comprehen-
towards threats of crimes in one’s own environ- sively subjective and objective evaluation sys-
ment, evaluation for victimization; a series of tem. Now, while there are relevant statistics for
behaviors and impact caused by the situation of national investigation on public security feelings
public security feelings. in the National Bureau of Statistics in China, at
In 1983, the Communist Party of China (CPC) present theoretical exploration and practical situ-
Central Committee, State Council and the ation is still needed to be improved and deepened
National People’s Congress (NPC) Standing both in width and depth.
Committee released documents concerned with China’s investigations on public security feel-
the decision to carry out activities aimed at ings demonstrated four developing trends: com-
fiercely cracking down on serious criminal bination of official evaluation and social
offenders. They proposed for the first time that evaluation, combination of subjective indicators
granting the public with a greater sense of public and objective indicators, combination of process
security would be one of the hallmarks to present and result, combination of collaboration and
a fundamental improvement in public order. technology. Projects of evaluation also started to
China’s study on public security feelings began reflect in such objects of evaluation as well-
in the mid-1980s, among which the most being-indicators, exploration of “Evaluation of
influential study was Indicators and Evaluation of Happy City Index,” exploration of “Evaluation of
Public Security Feelings chaired by the Institute Safe City Index,” and exploration of “Evaluation
of Public Security of P.R.C. Public Security of Safe Community Index.”
Ministry. In the course of building a system of
public order and indicators of public security 27.3.4.3 Disasters, Accidents and Victims’
feelings, the subject considered indicators and Psychological Intervention
evaluation of public security feelings as one of its Some scholars, Wang Dawei, Guo Taisheng (2006),
three sub-topics. It adopted a self-designed ques- Zhang Peibin, and Zhu Zonghan, have conducted
tionnaire on public security feelings and common researches in the aspects of disasters, accidents,
indicators used in evaluating fear of crime, set and victims’ psychological intervention.
the coefficients of public security feelings, and Chinese scholars did evaluating research for
investigated the factors affecting public security victims in disasters, accidents and for influences
feelings and conducted statistical analysis. From on victims based on severity of their psychologi-
the very beginning, studies on public security cal hurt, emotional state, degree of physical
feelings in China had very significant practicality injury, suicide risk, and damage of the social
in that they provided beneficial data for social foundation. They also assessed the process of
and national decisions. During the process of impact upon victims before, during and after the
social comprehensive control and constructing disaster, in addition to evaluation on victim
safe and civilized quarters in some districts, pub- results and social impacts. The study set up basic
lic security feelings was noticed in different principles and intervention methods and means
points, which improved the sense of public secu- in the aspects of victim intervention. The most
rity. However, researches in public security feel- important relief for victims was a distinction
ings mainly focused on social object and objective among three stages of pre-disaster, disaster, disas-
environmental effects on people, while ignored ter relief, and to propose ways to improve psy-
the problems of their psychological qualities and chological intervention of Chinese victims and
personalities (Table 27.1). assistance: improvement of corresponding man-
In recent years, some Chinese scholars have agement system, strengthening social advocacy
done plenty of research on victims’ public secu- and basic knowledge, cultivating a professional
rity feelings to reveal the functions of factors of organization and personnel for psychological
victimization. These studies aimed at making up intervention. China is a disaster-prone area, so
previous deficiencies from the perspective of relevant researches and explorations in this field
victims’ and even the whole society’s public are being gradually carried out.
426 W. Dawei and T. Longfei
Table 27.1 Investigation on public security feelings in Beijing, Shanghai, and Guangzhou
Investigation Investigation Investigation Investigation
name date place contractor Investigation method
Investigation on 2002.06 Chaoyang Studying team of Selected streets and community neighbor-
Beijing District, Beijing hood committees in different categories,
citizens’ public Xicheng comprehensive select citizen sample in neighborhood
security District, evaluation committees by random sampling, complete
feelings Shunyi system of 440 effective questionnaires in total with
District synthesis governs response rate over 90%
Public security 2004–2008 Shanghai Zero corporation Selected 500 citizens to accept interviews,
feelings in consigned by apply data level multi-angle measurement
Shanghai Shanghai in questionnaires to interview Shanghai
synthesis governs citizens with different backgrounds,
office discover certain information about public
security by using many years’ data
Public 2002–2008 Guangzhou Guangzhou Telephone interviews, use geometric
evaluation public opinion method of population to randomly Selected
investigation on center of social residents’ phone numbers from each
public order situation district, interviewers go from one house to
management in another according to the numbers,
Guangzhou investigate and visit people of different
ages, occupations, public income level in
Guangzhou districts, complete about 1,200
effective questionnaires each time
Data sources: Compiled by Wang Dawei according to relevant data, 2009
In China, study of law, Sociology, study of serious crime trends, etc., and thereby demon-
Public Administration and Psychology are com- strates many relevant characteristics which are as
monly recognized normative social sciences. follows: not only traditional types of crime con-
Researches in these fields have significant effects, tinued to abundantly exist, but there also has seen
and can play a very positive part in promoting the an increase in more intelligent modern crimes.
development of other disciplines. During the As a result, the situation of victims and the vic-
search of development, China’s Victimologists timological studies is bound to have the same
ought to make an active combination with Chinese features as other developing countries in Asia
national conditions and to absorb the research and its own social characteristics under the
results of advantage disciplines, construct the vic- influence of international community.
timological discipline system, form researching
character with the developing country. This will
eventually lead to the formation of their own meth- 27.4.1 Prominent Issues of the Victims
ods of researching core issues and the integration During the Recent Period
of many disciplines in order to promote the local-
ization development of Victimology in China. Now victim issues in China have some obviously
different convex points and order. Such problems
were given more attention as agriculture, laid-off
27.4 Developing Prospective workers, population and ecology, education crisis,
of Victimology in China moral standard and norms anomie, marital and
family discord, violence in schools, youth abuse,
China, with its long history, is the world’s largest corruption, family violence, network, telecom
developing country. It is currently in the period of fraud victims and intellectual property. These issues
developing transition, uneven development strikingly showed China’s situation as a developing
among regions, with social justice mechanism country in Asia. The research and development of
needing to be strengthened, a gradual increase of victim in China had a close relationship with these
27 The Retrospect and Prospect of China’s Victimology 427
social issues, and brought out victims problems China needs to be strengthened and perfected, and
with unique Chinese characteristics, including corresponding academic research organization
labor claims of migrant workers, juvenile victims, shall be established, so as to finish the construc-
women victims, elderly victims, courageous vic- tion of a foundation platform for the research and
tims, victims of violent crime in schools, network development of Victimology.
victims, telecom fraud victims, robbery and snatch
victims, overseas victims and victims of intellec-
tual property rights. These problems embodied 27.4.3 Development and Perfection
some similar aspects among victims in Chinese of the Relevant Social System
society and international community, and high-
lighted the unique nature of Chinese society and The application of Victimology is always stressed
other developing-country societies. in the Victimology research in China, and that
will have important promoting effect for the con-
struction of various systems. Mature system for
27.4.2 Localization of China’s protecting the rights and interests of victim needs
Victimology to be built in the development of Victimology in
China, corresponding legislation and law enforce-
The problem of victim in China was affected by ment system needs to be established and per-
the historical conditions and cultural traditions fected, and other corresponding system shall be
and undeveloped levels, thus Victimology has its constructed for forming a complete set, so as to
own development track in China. China is a practically protect the rights and interests of vic-
Socialist society which sprung from both a semi- tim. In the process of system construction, China
colonial and semifeudal society. It overlooked the will first be aimed at all-round development and
cognition development stage by paying no atten- perfection of rule of law, so as to promote the
tion to the victim, abusing the rights of the victim development and perfection of the social system
in Western capitalistic stage. Three schools are for Victimology. Second, in the system for con-
produced with international development of crete criminal victim, criminal law and code of
Victimology, including the Positive School, criminal procedure as well as other laws will be
Radical School and Critical School, which have further revised. For the legal status of victim,
certain influence on the development of there shall be more profound and explicit stipula-
Victimology in China, but lacking unique theories tions in the judicial procedure on the indemnity
suitable for solving the victim problem in China. and restitution to victim as well as the concrete
The development of Victimology in China and its right and obligation of victim. The construction
becoming of a subject without controversy will be of judicial system and the practice of law enforce-
a long-term process. First, Chinese scholars will ment will be increasingly developed, and they
develop constructions for the subject of will become more sound and perfect, and greater
Victimology itself in depth during that process, development will be achieved it relevant aspects
such as the basic category, theory and system. involved in it that are beneficial for the victim
Second, they will further probe into various vic- rights, such as the organization of judiciary, stan-
tim problems in relevant types of victim research dard and regulation for law enforcement as well
along with the emergence of victim in Chinese as guarantee of relevant procedure, etc. Third,
society. Third, with the further development of construction of other systems in Chinese society
relevant social sciences, China’s Victimology will will also be further developed, and they shall be
also integrate the knowledge of other subjects for constructed in an all-round way in the compre-
use, such as Sociology, Psychology, etc., so that hensive decision-making and implementation
the subject itself will have certain absorbing power mechanism for social development, appraisal
and tension, and it shall make progress in synthe- mechanism for social influence, network mecha-
sis and application in the development path of nism for social safety, and management mecha-
subject. The researcher group of Victimology in nism for social risk, so as to enhance the protection
428 W. Dawei and T. Longfei
to rights of victim, and promote the development victims, China will actively draw on the experi-
of relevant subjects pertaining to Victimology. ence from countries more advanced in Victimology
research, such as Japan and Republic of Korea in
Asia, and establish a national research platform.
27.4.4 Construction of Victim Support In addition, China shall periodically host interna-
Mechanism tional seminars on Victimology in order to
actively attract relevant foreign scholars to par-
From the beginning of the 21st century, Chinese ticipate in these activities in China. In addition,
scholars began to perform large-scale systematic Chinese scholars shall actively go abroad to for-
research on the construction of victim support eign countries to further their knowledge, partici-
mechanisms, and there is still a great shortage in pate in ground breaking research and shall draw
theoretical research and practical application. In valuable experience from such opportunities.
“Certain Idea about Developing the Work of They will attend international conferences meet
Criminal Victim Support” (2011), China shall with victims, and doctors. This will encourage
stipulate the condition, standard and procedure more scholars to pursue advanced studies abroad;
for criminal victim support, and shall try to and by strengthening international exchanges,
strengthen protection to the rights of criminal China’s scholar shall reap the benefits from the
victims in support mechanisms. With the further more experienced scholars on Victimology which
development of the working mechanism of crim- in turn will help promote the further development
inal victim support, and future research on mech- of Victimology in China.
anism of victim support, Chinese scholars will The development of Victimology in China is
put forward more proposals with greater opera- not only the product of its greater demand in
bility combined with the national conditions of China but also the crystallization of wisdom
China, perfect special legal and institutional sys- under relevant academic influence of interna-
tems for victim support, establish and perfect the tional Victimology. In such a historical course,
organizational system for social support for vic- we can see many experiences and lessons worth
tim. In particular, in the concrete operation hori- deep thinking and analysis in the knowledge and
zon of victim support, we shall promote the origin of Victimology in China. China’s scholars
development of victim support practices, such as are inspired to learn from the countries and schol-
the setting up of support organizations, selection ars in the front lines of research in the world.
of support modes, support funds, support for spe- Only so can the experience of China be expected
cial types of victim, etc., so that social develop- to further develop itself, not only for the benefit
ment will be more stable and harmonious, and of the Chinese people but also to better contribute
the Victimological values of social equality and and even benefit Asian society and even the
justice shall be amply embodied. International Community.
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27 The Retrospect and Prospect of China’s Victimology 431
A Asian criminology
Abu Sayyaf Group (ASG), 152, 160 center–periphery relations, 2–3
Alliance Against Counterfeiting and Piracy (AACP), 91 cultural and religious diversity, 2
Alternate dispute resolution (ADR), 206 international scholarship, 3
Amphetamine-type stimulants (ATS), 115, 118–119 journal impact factor, 4
Annual Wage Supplement (AWS), 38 limitations, 5–6
Anti-Corruption and Civil Rights Commission (ACRC), 32 world economic growth, 1
Anti-Corruption Branch (ACB), 39 Asian-Pacific-Japan region (APJ), 51
Anti-Corruption Office (ACO), 40 Asia Pacific region, restorative justice
Anti-Human Trafficking Division (AHTD), 138 anti-social behaviour, 383
Anti-Trafficking Division (ATD), 137 benefits, 380–381|
Armed Forces of the Philippines (AFP), 156 Confucianism, 380
Asian countries contentious origins, 381–382
child protection (see Child protection) definition, 379
corruption causes harmony and peace, 384
ACRC, 33 Japanese social organization and cultural practices,
anti-corruption agencies, 32 383–384
anti-corruption laws, 31 neutralization, 386–387
bribes, 29 personal journeys and reflections, 388–390
business, 30 self-image and compliance, 387
KICAC, 33 shuttle-style mediation, 385
KPK, 33 social relationship, 385
low salaries, 29 therapeutic interventions, 388
OPEN system, 30 traditional ways, 385–386
penalty, 31 transformative processes, 388
political leaders, 32 victims and offenders, 386, 387
political will, 31 Association for Victims Support (AVS), 353
Red tape and administrative procedures, 30 Association of British Insurers, 106
RRC, 30 Association of Vehicle Victim Rescue (AVVR), 351
CPI, 26 Attorney-General’s Office (AGO), 33
government effectiveness, 34–36 Aum Shinrikyo, 154
politicians public trust and distrust, 33–34 Australian Institute of Criminology, 88
Singapore’s and Hong Kong’s experiences
best and brightest citizens, 38–39
Comprehensive Anti-corruption Legislation, 40–41 B
corrupt offenders, 42–43 Bangladesh National Women Lawyers Association
favorable policy contexts, 36 (BNWLA), 134
independent anti-corruption agency, 39–40 Bangsamoro Islamic Freedom Fighters (BIFF), 152
meritocracy, 36–38 Bansamoro National Liberation Army, 153
Red tape reduction, 41–42 Barison Revolusi National-Coordinate, 152
UNDP, 25 Biplabi Communist Party, 150
World Bank’s Control of Corruption, 26 BOYCOTTRIAA.com, 93
Corrupt Practices Investigation Bureau (CPIB), 30, 39 CVPA. See Crime Victim Protection Act (CVPA)
Council of Europe’s (CoE), 54 Cybercrime
Council of Justice Ministry (CJM), 174 anonymity and encryption, 59
Crime Research Center of the National Chung-Cheng Asia
University (CRC-NCCU), 347 attack toolkits, 51
Crime victimization surveys (CVSs), 190 botnet-infected computers, 52
Crime Victim Protection Act (CVPA), 351 content crime, 53
Crime victims DDoS attacks, 53
advocates, 352–353 GeoHot and Graf_Chokolo hacker
AVS, 356 groups, 53
AVVR, 351 Instant Messaging, 52
CATI, 347 malware/crime-ware computer codes, 51
CCTV, 355 online scams, 52
commercial victimization, 349 semantic/human intelligence methods, 53
compensation, 352 social engineering techniques, 52
criminal justice, 345 Symantec, 51
CVPA, 351–352 botnets, 58–59
DPP, 354 Budapest Convention
foreign spouse, 354–355 CoE, 54
household victimization, 348–349 computer security laws, 56
impact, 349–350 crime-ware, 55
individual victimization, 347–348 development of, 57–58
in-person interview, 347 law enforcement agencies, 53–54
MWF, 351 obscenity and pornography/erotica, 57
nationwide crime victim survey, 346–347 PRC Criminal Law, 56
potential and limitations, 346 substantive laws, 54
primary crime victims, 344 telecommunication networks, 55
telephone survey, 347 cloud computing, 59
victimology, 344 ICT, 49
victim right, 354 internet access and digital divide, 50–51
Criminal homicide Russian Government, 60
capital punishment, 16–17 social networking, 59
clearance rate, 21–22
democracy, 19
firearms uses, 16 D
homicide trends Darul Islam, 155
Asia and Oceania, 13 Death penalty
Central Asia and Transcaucasian countries, 14 India, 205
East Asia, 14 Sri Lanka, retributive justice, 289
Middle East/South West Asia, 15 Taiwan, 306–307
South Asia, 15 Declaration on the Elimination of Violence Against
international homicide data Women (DEVAW), 371
cross-national comparative homicide data, 12 Democratic Progressive Party (DPP), 354
HIS dataset, 13 Denial of service attacks (DDoS), 51
intentional homicide data, 13 Department of Corrections (DOC), 317
Interpol, 11 Department of Probation (DOP), 319
UN-CTS, 11 Department of Special Investigations (DSI), 138
UNODC, 12 District Police Officer (DPO), 248
WHO, 11 Domestic violence, India
modernization perspective, 19–20 crimes against women
population diversity, 18–19 IPC, 369, 370
social factors, 15–16 percentage of, 370–371
social stress and support, 20 rape cases, 370
suicide, 20–21 SLL, 369, 370
youth population, 17–18 crucial social mechanisms, 371
Criminal Investigation Department (CID), 39 definition, 371
Criminal justice reform, 321–322 DEVAW, 371–373
Criminal Justice System (CJS), 172–173 dowry deaths, 369, 372
Criminal Procedure Code (CPC), 205, 256, 288 economic development, 369
Customs and Excise Department (C&ED), 194–195 IPC deals, 373
436 Index
Intellectual property crime online (cont.) Japanese criminal justice and criminology
Theft Act, 86 American cultures, 213
trademarks, 85 Americanization of, 216–218
music and video piracy, 88–89 Chinese Penal Codes and original development
networked information technologies, 84 Asian time, 215
software piracy, 89–90 civilizations, 214
stealing virtual artefacts, 90–91 historical time, 215
theft, 86–88 indigenous time, 215
Internally Displaced Persons (IDPs), 248 legislative policies, 220–221
Internal Security Act (ISA), 241 modernization and western criminal laws, 216
International Criminal Police Organization (Interpol), 11 native laws, 214
International Homicide Statistics (HIS), 12 post-war Japan, 218–219
International Labor Organization (ILO), 130 pre-modern times, 213
International Security Assistance Force (ISAF), 149 Japanese National Police Agency, 65
International Violence Against Women Survey (IVAWS), Jemaah Islamiyah (JI), 150
330 Journal Citation Reports (JCR), 4
intimate partner violence, 339 JSA and Shiri, 71
involvement and assessment, 340–341 Juvenile offenders. See Restorative Justice (RJ)
nonintimate partner violence, 339 Juvenile Protection Law (JPL), 394
prevalence, 338–339
severity and perception, 340
Internet Fraud Complaint Centre (IFCC), 92 K
Inter Services Intelligence (ISI), 148 Karachi University (KU), 250
IPC. See Indian Penal Code (IPC) Khmer Rouges (KR), 167
Islamic Jihad Union (IJU), 153 Khyber Pakhtunkhwa (KPK), 249
Islamic law, 232 conviction rate, 261, 278
Islamic Movement of Uzbekistan (IMU), 153 prosecution, 261
Kohat University of Science and Technology (KUST), 250
Komisi Pemberantasaan Korupsi (KPK), 32
J Korea Independent Commission Against Corruption
Jaish-e-Mohammed, 149 (KICAC), 33
Jama’ah Ansharut Tauhid (JAT), 151, 159 Korean National Police Agency, 65
Jamaat ul-Mujahideen Bangladesh (JMB), 150 Kujikata Osadamegaki, 215
Jammu and Kashmir Liberation Front, 149 Kumpulan Militan Malaysia (KMM), 159
Japan
anomie theory, 227
child abuse, 359–361 L
child molesters, 363–364 Lashkar-e-Jhangvi (LJ), 149, 159
human trafficking Lashkar-e-Toiba (LeT), 149
prosecution, 137 Legal Aid of Cambodia (LAC), 175
protection and prevention, 141 Legal Services Authorities Act, 206
trafficking trends, 131 Legal Support for Children and Women (LSCW), 140
JACP, 226 Liberation Tigers of Tiger Eelam (LTTE), 150, 157, 160
Japanese Association of Social Problems, 227
JASC
activities of, 226–227 M
establishment of, 226 Majelis Mujahidin Indonesia (MMI), 151
juvenile justice system, 224–225 Malaysian Anti-Corruption Commission (MACC), 244
labeling theory, 227 Malaysian crime and criminal justice
national research institutes, 228–229 Attorney General, 233
research institutions, 225 crime data
Ryukoku University, 229 categories, 235
science research funds, 229–230 crime index, 233
Shinich Ishizuka researches, 229 crimes reports, 233–234
sociological criminology, 224 limitation, 234
sociological study, 224 national survey, 234
Tokiwa International Victimology Institute, 229 PDRM, 233
victimology, 227–228 property crime, 234, 235
World War II, 223–224 robbery and violent theft, 235
youngsters, 228 rural–urban migration, 236
Index 439
Pakistan criminology and criminal justice (cont.) Preventing Juvenile Delinquency Law (PJDL), 394
police Prevention and Control of Human Trafficking Ordinance
recruitment, training and education, 257–258 (PACHTO), 136
structure, organization and functions, 256–257 Prevention of Bribery Ordinance (POBO), 40, 194
prison Prevention of Corruption Act (POCA), 41
reforms, 265 Prevention of Corruption Ordinance (POCO), 40, 194
statistics, 265 Prison
structure and functions, 263 reforms, 265
probation, 280–281 statistics, 265
functions, 267 structure and functions, 263
imprisonment, 265 Probation of Offenders Act, 208–209
procedures, 266–267 Protection officer (PO), 374
social investigation report, 267 Protection of Women from Domestic Violence Act
statistics, 267, 268 (PWDVA)
prosecution anti-dowry law, 375
conviction rate, 261 civil law, 373–374
directorate aims, 260 PO, 374
KPK, 259–260 Public Service Commission (PSC), 36
organizational structure and responsibilities, 260 Punishment. See Thailand
province-wise crimes, 249, 271–272 Purba Banglar Communist Party (PBCP), 150
record flow, 249–250, 270 PWDVA. See Protection of Women from Domestic
reforms, 258–259 Violence Act (PWDVA)
socio-economic indicators, 247–248
Pale Flower, 73
Parole R
defintion, 267, 268 Railway Protection Force (RPF), 147
functions, 268 Rape, Serious crime, 177
prisoners eligible, 268 Recording Industry Association of America (RIAA), 88
procedures, 268 Regulatory Reform Committee (RRC), 30
statistics, 268–269 Reintegrative shaming theory, 219
Patani United Liberation Organization (PULO), 152 Research Institute for Scientific Investigation, 225
People’s Republic of China (PRC). See Restorative Restorative justice (RJ), 366
justice (RJ) Asia Pacific region
People’s Republic of Kampuchea (PRK), 167 anti-social behaviour, 383
Plea bargaining, 302–303 benefits, 380–381
PO. See Protection officer (PO) Confucianism, 380
Police, 277 contentious origins, 381–382
Pakistan definition, 379
recruitment, training and education, 257–258 harmony and peace, 384
reforms, 258–259, 278 Japanese social organization and cultural
structure, organization and functions, 256–257 practices, 383–384
Taiwan neutralization, 386–387
CCTV and security devices, 298–299 personal journeys and reflections, 388–390
crime statistics, 298 self-image and compliance, 387
cyber crimes, 299 shuttle-style mediation, 385
fraud games, 299 social relationship, 385
hooligans/gangsters, 300 therapeutic interventions, 388
Political Economic Risk Consultancy (PERC), 35 traditional ways, 385–386
Politicians public trust transformative processes, 388
Asian countries victims and offenders, 386, 387
1999–2009/2010, 27 Bangjiao, 395–396
ranking of, 28 China’s mediation processes, 401
Hong Kong Chinese juvenile justice, 402
2001 East Asian Barometer survey, 29 community-based treatment, 396
ineffectuality and hypocrisy, 29 community correction, 396
Institutional Trust level, 28 against the crime, 401
Singapore criminal justice process, 401
2006 Asian Barometer Survey, 28 criminal reconciliation, 397–398
Institutional Trust level, 28 delinquency control, 402
Post-traumatic stress disorder (PTSD), 427 JPL and PJDL, 394
Index 441
X
W Xinjiang Uighur Autonomous Region
World Drug Report, 116 (XUAR), 154
World Health Organization (WHO), 11