Handout of Asian Criminology

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Handbook 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.
ISBN 978-1-4614-5217-1 ISBN 978-1-4614-5218-8 (eBook)

DOI 10.1007/978-1-4614-5218-8
Springer New York Heidelberg Dordrecht London
Library of Congress Control Number: 2012951669
© Springer Science+Business Media New York 2013

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Foreword
This Handbook of Asian Criminology could not come at a better time. As

India’s population rapidly approaches the size of China’s, as Myanmar seeks
engagement with peer nations that respect a Rule of Law, as research on
crime and justice flourishes from Seoul to Sydney, no criminologist on earth
can ignore what our colleagues are doing in Asia.
A decade ago, I told the senior editor of this collection that the “future of
criminology lies in Asia.” I am honored that he has often reminded me of this
statement. Yet I do not claim any profound meaning for my observation.
Rather, I merely matched my prediction to the demographic trends. The
future of criminology must be in Asia simply because the future of most
people on earth is in Asia.
What will this mean for the quality of human existence? While the strug-
gle for food and survival remains problematic, especially in South Asia, the
struggle for freedom from fear—of criminal force—seems more daunting.
Across China and India, small farmers may have their land sold by corrupt
local politicians, losing centuries of family investment in the land. From
Afghanistan to Bangladesh, women suffer very high risks of rape or punish-
ment if they dare venture onto the streets without a man to chaperone them.
From the south of Thailand to many other locations, schools may be bombed
or teachers may be murdered for teaching young girls to read.
The booming economies and gleaming modern cities of Twentieth Century
Asia belie the strong traditions that hold back progress. The Indian idea of
“encounter killings” as a form of summary justice by police, for example,
collides with a rule of law. Yet a senior police officer who refused a politi-
cian’s request to kill someone this way (making it appear to be self-defense
by police against the criminal) did so on the grounds that the prospective
victim had not killed anyone himself, as accused, and so the police would not
kill him. Furious, the politician had the police officer transferred, and his
further career advancement blocked for at least 14 years.
The good news is that this police officer held fast to the substance, if not
always the procedures, of a rule of law. He did what police in the USA have
long been forced to do: to survive a confrontation between democracy and
due process. The apparently increasing occurrence of such confrontations
describes progress, the modern communications and Internet links of a growing
Indian middle class may help to raise standards of justice. Many criminals
punished in the USA are later found innocent based on new DNA evidence,
in cases publicized around the planet. Each of these may be a shock to
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
is different in Asia, just as we would reject the idea of “German science”

propagated in World War II.
If and when that day comes, it will be a long time from now. The impact
of nation-states on the nature of crime and justice problems makes criminol-
ogy without borders a difficult challenge. We will be many years in revealing
the commonalities of science across regions and even within Asia. Until then,
readers will find this Handbook indispensible.
Hyderabad, India Lawrence W. Sherman

Contents
1 Progress of Asian Criminology: Editors’ Introduction ........... 1

Jianhong Liu, Bill Hebenton, and Susyan Jou
Part I Types of Crime in Asia
2 Homicide in Asia ......................................................................... 11

Mengyan Dai
3 Curbing Corruption and Enhancing Trust in Government:
Some Lessons from Singapore and Hong Kong ....................... 25
Jon S.T. Quah
4 Cybercrime in Asia: Trends and Challenges ............................ 49
Roderic Broadhurst and Lennon Y.C. Chang
5 Triad, Yakuza, and Jok-Pok: Asian Gangsters in Cinema...... 65
Paul T. Lankin and Phillip C. Shon
6 Intellectual Property Crime Online in Asia.............................. 83
David S. Wall and Majid Yar
7 “Opportunist” Insurance Fraud Under Different Political
Economies: Taiwan (Asia) and Europe Compared .................. 99
Susyan Jou
8 Drug Abuse and Drug Trafficking in Asia ................................ 115
Huan Gao
9 Human Trafficking in Asia ......................................................... 129
R. Thilagaraj and S. Latha
10 Terrorism in Asia: A Persistent Challenge Sustained
by Ideological, Physical, and Criminal Enablers ..................... 147
Paul J. Smith
Part II Crime and Criminal Justice in Selected Asian Countries
11 Crime and Justice in Cambodia ................................................ 167

Roderic Broadhurst, Thierry Bouhours, and Chenda Keo
ix
x Contents
12 Crime and Criminal Justice in Hong Kong .............................. 183

Yuet Wah Cheung and Nicole W.T. Cheung
13 Criminal Justice System in India............................................... 199
R. Thilagaraj
14 Diversity Within an Asian Country: Japanese Criminal
Justice and Criminology ............................................................. 213
Tokikazu Konishi
15 Development of Criminology in Japan from
a Sociological Perspective ........................................................... 223
Minoru Yokoyama
16 Crime and Criminal Justice in Malaysia .................................. 231
Salim Ali Farrar
17 Criminology and Criminal Justice System in Pakistan ........... 247
Fasihuddin
18 Thinking for New Horizon in Criminal Justice: Moving
from Retributive to Restorative Justice in the Treatment
of the Offender in Sri Lanka ...................................................... 283
M.A.D.S.J.S. Niriella
19 An Overview of the Criminal Justice System in Taiwan ......... 297
Charles Hou
20 Contemporary Crime and Punishment in Thailand................ 309
Lesley D. Junlakan, Yossawan Boriboonthana,
and Assanee Sangkhanate
Part III Victims and Offenders
21 Violence Against Women in Singapore: Initial Data

from the International Violence Against Women Survey........ 329
Wing-Cheong Chan
22 Victims of Crime in Taiwan........................................................ 343
Hsiao Ming Wang
23 Child Protection in Asia ............................................................. 359
Mari Hirayama
24 Victims of Domestic Violence in India: Do They
Have Rights? ................................................................................ 367
Sesha Kethineni and Murugesan Srinivasan
25 Restorative Justice in the Asia Pacific Region: Acting Fairly,
Being Just ..................................................................................... 379
Brian Steels and Dot Goulding
Contents xi
26 Evolution of Restorative Justice Practices for Juvenile

Offenders in the People’s Republic of China............................ 393
Dennis Sing-wing Wong and Louis Wai-yin Mok
27 The Retrospect and Prospect of China’s Victimology ............. 407
Wang Dawei and Tan Longfei
Index ..................................................................................................... 433

Contributors
Yossawan Boriboonthana, Ph.D. Department of Probation, Research and

Development Center, Ministry of Justice, Bangkok, Thailand
Thierry Bouhours, Ph.D. School of Regulation, Justice and Diplomacy in
the ANU College of Asia and the Pacific, Canberra, ACT, Australia
Roderic Broadhurst, Ph.D. School of Regulation, Justice and Diplomacy
in the ANU College of Asia and the Pacific, Canberra, ACT, Australia
Australian Research Council Centre for Excellence in Security and Policing,
Australian National University, Canberra, ACT, Australia
Wing-Cheong Chan, Ph.D. National University of Singapore, Singapore,
Singapore
Lennon Y.C. Chang, Ph.D. City University of Hong Kong, Kowloon,
Hong Kong
Yuet Wah Cheung, Ph.D. Department of Sociology, The Chinese University
of Hong Kong, Shatin, N.T., Hong Kong, China
Nicole W. T. Cheung, Ph.D. Department of Sociology, The Chinese Univer-
sity of Hong Kong, Shatin, N.T., Hong Kong, China
Mengyan Dai, Ph.D. Old Dominion University, Norfolk, VA, USA
Wang Dawei, Ph.D. Chinese People’s Public Security University, Beijing,
China
Salim Ali Farrar, Ph.D. Centre for Asian and Pacific Law, Law School,
University of Sydney, Sydney, NSW, Australia
Fasihuddin, Master Police Service of Pakistan (PSP), Islamabad, Pakistan
Pakistan Society of Criminology, Peshawar, Pakistan
Huan Gao, Ph.D. California State University, Stanislaus, CA, USA
Dot Goulding, Ph.D. Asia Pacific Forum for Restorative Justice, Perth, WA,
Australia
Bill Hebenton, Ph.D. Centre for Criminology and Criminal Justice,
University of Manchester, Manchester, UK
Mari Hirayama, Master Hakuoh University, Oyama, Japan
xiii
xiv Contributors
Charles Hou, Ph.D. National Taipei University, Taipei, Taiwan

Susyan Jou, Ph.D. Graduate School of Criminology, National Taipei Uni-
versity, Taipei, Taiwan
Lesley D. Junlakan Consultant, Chiang Mai, Thailand
Chenda Keo, Ph.D. School of Regulation, Justice and Diplomacy in the
ANU College of Asia and the Pacific, Canberra, ACT, Australia
Sesha Kethineni, Ph.D. Department of Criminal Justice Sciences, Illinois
State University, Normal, IL, USA
Tokikazu Konishi, Ph.D. Waseda University, Shinjuku-ku, Tokyo, Japan
Paul T. Lankin, BA University of Ontario Institute of Technology, Oshawa,
ON, Canada
S. Latha, Ph.D. School of Criminology and Criminal Justice, Tamil Nadu
Open University, Chennai, Tamil Nadu, India
Jianhong Liu, Ph.D. Department of Sociology, University of Macau, Macao,
China
Tan Longfei, Master Chinese People’s Public Security University, Beijing,
China
Louis Wai-yin Mok, Ph.D. Department of Applied Social Studies, City
University of Hong Kong, Kowloon, Hong Kong
M.A.D.S.J.S. Niriella, M.Phil Department of Public and International Law,
Faculty of Law, University of Colombo, Colombo, Sri Lanka
Jon S.T. Quah, Ph.D. Political Science, National University of Singapore,
Singapore, Singapore
Assanee Sangkhanate, Ph.D. Justice Research and Development Institute,
Office of Justice Affairs, Ministry of Justice, Bangkok, Thailand
Phillip C. Shon, Ph.D. University of Ontario Institute of Technology,
Oshawa, ON, Canada
Paul J. Smith, Ph.D. National Security Affairs, Naval War College,
Newport, RI, USA
Murugesan Srinivasan, Ph.D. Department of Criminology, University of
Madras, Chennai, Tamil Nadu, India
Brian Steels, Ph.D. Asia Pacific Forum for Restorative Justice, Perth, WA,
Australia
R. Thilagaraj, Ph.D. Department of Criminology, University of Madras,
Chennai, Tamil Nadu, India
David S. Wall, Ph.D. School of Applied Social Sciences, University of
Durham, Durham, UK
Contributors xv
Hsiao-Ming Wang, Ph.D. University of Houston-Downtown, Houston, TX,

USA
Dennis Sing-wing Wong, Ph.D. Department of Applied Social Studies, City
University of Hong Kong, Kowloon, Hong Kong
Majid Yar, Ph.D. Department of Social Sciences, University of Hull,
Hull, UK
Minoru Yokoyama, Master Kokugakuin University, Tokyo, Japan
Progress of Asian Criminology:
Editors’ Introduction 1
Jianhong Liu, Bill Hebenton, and Susyan Jou
with debt ratios low, banking systems healthier,

1.1 Asia and Criminology in Asia
and corporate balance sheets less stressed.
Moving Forward
Furthermore, large foreign exchange reserves act
as an insurance against unexpected “global”
It is traditional for editors to “talk up” the subject shocks (Tay 2010). Wages and incomes are rising
matter of their book; but in our case, arguably, the and unemployment rates are not alarming.
regional significance of the subject matter is self- Regional trade is at an all-time high and the
evident. Within the Asian region, the People’s dependence on the USA and Europe for exports
Republic of China has already overtaken Japan as has declined. China now ships only 35% of its
the second largest economy in the world and is exports to the USA and European Union coun-
likely to take over the top spot by the end of this tries (Kawai and Petri 2010).
current decade (New York Times, 15 August 2010, In the coming decades, some trends in Asia
“China passes Japan as second largest economy”). will likely develop in the context of further glo-
India is moving rapidly up the ladder and will balization, developing regionalism and the ongo-
soon become the third largest economy globally. ing electronic and information revolution. First,
The International Monetary Fund estimates that Asia is likely to develop a greater sense of
emerging Asia will be the main propellant of regional awareness and cohesion. The continent
world economic growth in the coming decades. is still comprised of subregions (Northeast,
Europe, the USA, and Japan face serious reces- Southeast, South, Central and West Asia). But
sion. By contrast, the public financial system of the region’s existing and developing institution
Asian countries appears in relatively good shape, building (such as the Association of South
East Asian Nations, Shanghai Cooperation
Organisation and other, international, multi-lat-
J. Liu, Ph.D. (*)
eral or bi-lateral groupings) will gradually lead
Department of Sociology, University of Macau,
Av. Padre Tomas Pereira, 1 Taipa, Macao, China toward a greater level of cross-Asian cooperation
e-mail: [email protected] (Ozawa 2009). Second, the world configuration
B. Hebenton, Ph.D. of power is becoming more evenly distributed
Centre for Criminology and Criminal Justice, between traditional and emerging powers. In this
University of Manchester, Oxford Road, sense, Asia’s increasing role globally is evidenced
Manchester M13 9PL, UK
by the rise of G20 and enhancing reforms of the
e-mail: [email protected]
World Bank and International Monetary Fund
S. Jou, Ph.D.
(Tay 2010). And third, Asia is likely to contribute
School of Criminology, National Taipei University,
University Road 151, 237 Taipei, Taiwan more to the mainstream of global intellectual
e-mail: [email protected] development. Asia will substantially change its
J. Liu et al. (eds.), Handbook of Asian Criminology, DOI 10.1007/978-1-4614-5218-8_1, 1

2 J. Liu et al.
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
Center-periphery relations and the internationalization of criminology
Centre 1. Infrastructure and internal organisation Periphery
Development Underdevelopment
2. Conditions of existence and reproduction
Autonomy Dependency
3.Internal position and recognition
Centrality Marginality
(adapted from Keim, 2008)
Fig. 1.1 Center–periphery relations and the internationalization of criminology
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.
nal justice system in a number of selected Asian

1.2 Format of the Handbook
countries, with each chapter detailing the basic
detail of crime and punishment, including a brief
We are of the strong opinion that the challenge synopsis of the development and nature of the
for an enlightened criminology is to create a com- criminal justice system. The final section, Section
munity of transnational scholars and practitioners three “Victims and Offenders” provides the
who seek to share their research and insights reader with up-to-date accounts of both recent
about crime and its many manifestations. victim-related developments in Asia, and how
Jianhong Liu reminds us that crime is a general such developments are evidenced in new ways of
and human problem that troubles every country seeking “justice” for victims and working with
and thus offenders; the section includes country-specific
…criminology is an academic response of man- chapters on victims of crime in the criminal jus-
kind to the crime and justice problems. It is a gen- tice system and specific forms of victimization,
eral social science, an international science, which and includes research and policy development on
addresses the common human behavior of crime alternatives to formal criminal justice. Expanding
and its control. Despite the wide diversity of
nations and cultures, there are enough common knowledge of “victims” has been gained from
features in human criminal behavior and crime both academic research and the political impact
control to call for the study of shared experiences of legislation, policy-making, and lobbying by
and the exchange of knowledge in dealing with interest groups. Much victimization is against the
crime problems in different nations and cultures.
Research and practices in Asian countries should most vulnerable, women and children, and this
be part of the literature of international and com- section also focuses on these groups.
parative criminology. (Liu 2009, p. 7)
This Handbook of Asian Criminology seeks to 1.3 Limitations

represent the scholarly energy of a geographical
area rather than a particular perspective, arena or Due to the practical constraints of length and the
“subfield” and in that sense is primarily an volume of potential topics that could be addressed
endeavor in comparative research. It is this orien- under the banner of Asian criminology, many
tation that serves to enhance the relevance of topics were either discussed briefly or not
research about Asia. The Handbook has three included in the final product. However, beyond
sections, with this editors’ introduction, setting such practical logistics, some omitted topics are
out the development of criminological research indicative of an inadequate knowledge base at
on and of the region, together with a broad assess- present. It is well known that, in many Asian
ment of the varying state of crime and criminal countries, official data available for research use
justice research. Section one “Types of crime in are very limited. Frequently, governments con-
Asia” examines the empirical research base of sider crime-related data to be politically sensi-
common and new forms of criminal activity. In tive and are reluctant to disclose them to
addition to internationally recognized and legally researchers. Data collected by scholars are also
categorized forms of crime (e.g., drug-related limited, with studies scattered and intertwined in
crime), this section also draws attention to the other areas of broader legal study. For instance,
distinctiveness of socially contextualized crimi- detailed and systematic comparisons of mea-
nal activity (cyber-crime, corruption). It provides sures of incidence and prevalence of crime based
accounts of specific forms of criminality: when, on crime and victim surveys would be largely
how, by whom and in what contexts they are car- impossible across Asian countries. Similarly, a
ried out, whether and why they are increasing or major feature of the Asian context is diversity
declining, what particular issues they raise for across Asian societies and cultures, with differ-
criminal justice agencies, and so on. Section two ent languages, different legal systems, and diver-
considers the current state of crime and the crimi- sity in crime and crime control systems and
6 J. Liu et al.
practices, and our Handbook can only do limited

justice to the complexities.
References
On a further note of importance, in conversa- Barberet, R. (2001, March/April). Global competence and
tions as editors, we found ourselves frequently American criminology—an expatriate’s view. The
speaking as though criminology possessed a Criminologist (Newsletter of the ASC), vol 1, pp. 3-5.
nationality—“American” criminology, “British” Barberet, R. (2007). The internationalization of criminol-
ogy? A content analysis of presentations at American
criminology, “European” criminology, and Society of Criminology Conferences. Journal of
“Asian” criminology. Usually, we assumed this to Criminal Justice Education, 18(3), 406–427.
be but a short-hand expression of general refer- Broadhurst, R. (2006). Crime and security in Asia:
ence to criminology in that country or region, but Diversity and development. Asian Journal of
Criminology, 1, 1–7.
sometimes we actually were talking as though Cao, L., Sun, I., & Hebenton, B. (Eds.) (2013, forthcom-
criminology was endowed with a kind of national ing). Routledge handbook of chinese criminology.
character. At stake here was our recognition that Abingdon: Routledge.
comparative analysis constitutes a particularly Chui, W. H., & Lo, T. W. (Eds.). (2008). Understanding
criminal justice in Hong Kong. Cullompton: Willan.
fruitful way to demonstrate the profound inscrip- Garland, D. (2011). Criminology’s place in the academic
tion of knowledge in local culture and institu- field. In M. Bosworth & C. Hoyle (Eds.), What is
tions; and that in our editorial role we were criminology ? Oxford: Oxford University Press.
engaged in a complex reflexive analysis of the Hebenton, B., & Jou, S. (2005). In search of criminologi-
cal tradition: the development of criminology in
functioning of the field of criminology within the Taiwan. Crime, Law and Social Change,
Asian region as a whole and of its embeddedness. 44, 215–250.
The pursuit of such an enquiry necessarily rests Hebenton, B., & Jou, S. (2012). Taiwan’s criminological
upon fashioning a more compelling sociological ‘footprint’ - a review and analysis of English-language
publication trends (2000-2010). International Journal
account of the development of criminology, in of Comparative and Applied Criminal Justice, August.
particular national contexts across Asia. No indi- Online First.
vidual chapter in the Handbook is devoted to this Kawai, M., & Petri, P. (2010). Asia’s role in the global
end, nor indeed to a broader consideration of economic architecture. Working Paper Series No.235.
Tokyo: Asian Development Bank Institute.
applicability of Western theories of crime and Keim, W. (2008). Social sciences internationally: The
transferability to other societies. We share the problem of internationalisation and its consequences
view expressed by some commentators that for the discipline of sociology. African Sociological
answers to such questions will, ultimately, be Review, 12, 22–48.
Liu, J. (2007). Developing comparative criminology and
empirical in nature (Zhang 2011). the case of China. International Journal of Offender
Despite its necessarily limited range of topics, Therapy and Comparative Criminology, 51(1), 3–8.
the Handbook is a landmark publication, marking Liu, J. (2009). Asian criminology: Challenges, opportuni-
a gear-change in the visibility of the research ties and directions. Asian Journal of Criminology,
4, 1–9.
field on Asia for students and scholars alike. The Medina, J. (2011). Doing criminology in the “semi-
Handbook identifies tropes, topics, and trends in periphery” and the “periphery”. In search of a post-
criminological research on Asia, and we wish to colonial criminology. In C. Smith, S. X. Zhang, & R.
heartily thank all our contributors for persevering Barberet (Eds.), Routledge handbook of international
criminology. Abingdon: Routledge.
and helping in the completion of this ambitious Ozawa, T. (2009). The rise of Asia. Cheltenham: Edward
project. With its focus solely on English-language Elgar Publishing.
publications, our Handbook holds a mirror up to Radzinowicz, L. (1994). Reflections on the state of crimi-
the criminological communities in both Asia nology. British Journal of Criminology, 34, 99–104.
Rafter, N. (Ed.). (2009). The origins of criminology.
itself and other parts of the English-speaking London: Routledge.
world. Viewed this way, it provides a sense of Tay, S. (2010). Asia alone: The dangerous post-crisis
Asia’s criminological “footprint” in the largely divide from America. Chichester: Wiley.
English language-based scientific literature. By Teodorescu, D. (2000). Correlates of faculty publication
productivity: a cross-national analysis. Higher
corollary, our Handbook is also necessarily a Education, 39, 201–222.
crude measure of the “internationalization” of
criminological work on and in Asia.
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
Based on empirical research, this chapter also

2.1 Introduction
explores some correlates of homicide trends. In
addition, homicide clearance is also discussed
Virtually all penal laws in the world include a within a comparative approach.
prohibition against homicide. Homicide as a gen-
eral term refers to all cases in which a human
being kills another human being by his or her own 2.2 International Homicide Data
act, omission, or procurement. However, not all
homicides carry criminal culpability. Sometimes, Homicide data are usually considered the most
a killing may be committed in self-defense or by valid and reliable data for cross-national com-
accident or any other circumstances that the law parison among all internationally available vio-
permits. These are excusable homicides or lence data (Marshall and Block 2004).
justifiable homicides. In this chapter, only crimi- Comparative research on homicide has often used
nal homicide is discussed and analyzed. homicide data from three international sources,
Countries differ considerably in how they including the International Criminal Police
define homicide and its categories. Some juris- Organization (Interpol), the United Nations
dictions further divide criminal homicide into Surveys of Crime Trends and Operations of
categories such as murder and manslaughter. Criminal Justice Systems (UN-CTS), and the
There are also categories of homicide based on World Health Organization (WHO). The first two
the level of intent, such as intentional homicide sources are cross-national criminal justice data
and negligent homicide. Acts such as infanticide, sources, and the last one is a cross-national pub-
abortion, assisted suicide, and euthanasia may be lic health data source.
either included or excluded from the national These three data sources often do not provide
legal definition. Therefore, caution is usually similar homicide estimates. This is partly due to
needed in comparing and explaining homicide definitional differences (Marshall and Block
data across countries. 2004). According to Marshall and Block (2004),
This chapter first introduces the data sources Interpol uses the term murder rather than homi-
of international homicide data and then describes cide. Murder refers to any act performed with the
the recent homicide trends in Asian countries. purpose of taking human life. This definition
excludes manslaughter and abortion but not infan-
ticide. However, after 1978 manslaughter is not
explicitly excluded from the definition. In addi-
M. Dai, Ph.D. (*)
Old Dominion University, Norfolk, VA, USA tion, Interpol does not provide data on unintentional
e-mail: [email protected] homicide. In contrast, the UN-CTS survey includes

12 M. 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
Table 2.2 Homicide trends in East Asia, 2003–2008 (UNODC 2010)

2003 2004 2005 2006 2007 2008
Brunei 0.56 1.38 1.10 0 0.53
Darussalam
Cambodia 3.79 3.74 18.57 3.23
China 1.88 1.90 2.12 1.58 1.36 1.21
Guam 4.90 5.42 4.15 6.43 0.58
Hong Kong 0.73 0.64
Indonesia 0.77 0.66 9.295
Japan 0.50 0.50 0.54 0.46 0.44 0.40 0.54
Democratic 19.25
Republic
Korea
Lao 5.17
Malaysia 2.29 9.37 1.94 2.31
Mongolia 13.97 13.15 3.30 12.12 12.05 11.41 7.91
Myanmar 15.58
Philippines 7.82 7.56 20.84 7.53 7.11 6.72 6.44
Republic of 2.12 2.29 2.21 2.23 2.25 2.32 2.30
Korea
Singapore 0.58 0.50 1.31 0.49 0.39
Thailand 9.97 6.55 6.75 7. 80 7.55 6.62 5.90
Timor-Leste 12.52
Vietnam 3.81 1.72 1.85
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.
Table 2.3 Homicide trends in near Middle East/South West Asia, 2003–2008 (UNODC 2010)
2003 2004 2005 2006 2007 2008
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
Table 2.4 Homicide trends in South Asia, 2003–2008 (UNODC 2010)

2003 2004 2005 2006 2007 2008
Country Police Health Police Health Police Health Police Health Police Health Police Health
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 5.503 2.89 2.83 2.77
Maldives 1.73 2.99 2.62
Nepal 3.28 2.84 13.56 2.07 1.83 2.249
Sri Lanka 6.82 7.11 6.78 6.25 10.38 8.36 7.42
homicide rates over time with a comparative

2.4 Social Factors and Homicide
approach. Some Asian countries and regions such
as Japan, Singapore, Hong Kong, and Taiwan are
The macro-level empirical research on homicide often selected in the comparative research, and
has described and analyzed a number of factors the social factors that have been studied in the
that are correlated with homicide rates, and literature include availability of firearms, use of
majority of this body of research has studied the capital punishment, youth population, population
16 M. Dai
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)
Second, many Asian countries are undergoing

rapid changes in death penalty laws and practices. 2.7 Youth Population and Homicide
Third, Asian countries are less influenced by the
European culture, which provides more social Youth violence is a widespread problem around
contexts for comparative analyses and theory the world, and the highest homicide rate has been
generalization. Fourth, most of the executions in usually found among males between the ages of
the world are carried out in Asia, ranging from 85 15 and 29. Research showed that homicide rates
to 95% in recent years. In addition, about 95% of among youth aged 10–24 increased in many parts
Asian populations live in the jurisdictions which of the world between 1985 and 1994 (Legge
use capital punishment (Zimring and Johnson 2008). The research literature provides a wealth
2008). of approaches, focusing on different levels of
Zimring et al. (2010) studied the deterrent explanations: individual, situational, and social
effects of capital punishment on homicide trends cultural and economic factors. Among these fac-
in Asia. Specifically, this study used Hong Kong tors, prior research often emphasizes the impor-
as a comparison city to examine the impacts of tance of the socioeconomic status of the family
executions on homicide rates in Singapore over and of youth. According to Legge (2008), the
time. According to Zimring et al., there are simi- international labor data showed that working
larities between Singapore and Hong Kong with poverty among youth was especially prevalent in
regard to many aspects including population den- sub-Saharan Africa and South Asia.
sity, annual population growth, economic growth, Some criminologists contend that the effect of
adult literacy, birth rate, migrants-population age on crime is invariant across crime categories
ratio, and life expectancy. In addition, homicide and cultural conditions (Gottfredson and Hirschi
levels and trends are remarkably similar in these 1990). In other words, the age effect on crime is
two cities over 35 years after 1973. everywhere and at all times the same because
In Singapore, offenders convicted of murder crime declines as age increases. Empirical stud-
will be sentenced to death. Zimring et al. (2010) ies on homicide rates in some Asian countries
combined different sources of data and described suggest that this thesis needs to be modified.
that murder executions in Singapore rose in Johnson (2008), for example, described
1992 and dropped back quickly after the 1994– Japan’s postwar homicide decline and the vanish-
1995 peak. Further, homicide trials in Singapore ing young killers in particular. Japan’s homicide
often take a few months with a speedy appeal rate has dropped 70% and become one of the
process after conviction. In contrast, Hong Kong lowest homicide rates in the world. According to
had no executions from 1967 to 1998, and since Johnson, the World Health Organization data
1993, mandatory life sentences are imposed for showed that the Japan’s homicide rate was 0.6
murder. per 100,000 population in 2002, a rate that was
To explore the relationship between execution about half the mean and the median for other
rates and homicide rates in Singapore, Zimring developed nations. Comparing with other Asian
et al. (2010) used the murder rate in Hong Kong countries, Japan also had few homicides.
as a control variable in the statistical analyses. According to Hasegawa and Hasegawa (2000),
They estimated 14 models of homicide trend in Japan’s postwar decline in homicide rate has
Singapore during 1973–2007 and its shorter trend made it an extraordinary country.
during 1981–2007. They concluded that the According to Johnson (2008), the most plau-
changes in execution levels had no significant sible explanation for Japan’s homicide drop was
impacts on the homicide trend in Singapore. best described demographically. Johnson found
Specifically, the decline in homicide rate hap- that Japan was a striking exception to the pattern
pened before the sudden increase in executions in found in other nations where young males were
1992, and the changes of homicide rate over time most likely to kill. Data showed that, in contrast,
were largely unrelated to the extent of execution. the most murderous demographic in Japan was
18 M. Dai
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
sample included Japan, Hong Kong, Philippines,

Thailand, and Taiwan. They found that the two 2.10 Modernization and Homicide
dimensions of population diversity had significant
main effects on cross-national homicide. The modernization perspective asserts that crime
Specifically, as heterogeneity and inequality booms are inevitable results of the rapid social
increase, the homicide rate increases. In addition, changes experienced by nations that are in transi-
increased ethnic heterogeneity exacerbated the tion from traditional to modern forms of organi-
impact of income inequality on homicide rates. zation (Lafree and Drass 2002). According to this
perspective, crime results when modern values
and norms come into contact with and disrupt
2.9 Democracy and Homicide older, established systems of role allocation.
During the transitional period, the emerging new
There were simultaneous increases in democrati- roles are not fully institutionalized and integrated
zation and violent crime rates in many countries into society, making normative guidelines ambig-
during the second half of the twentieth century. uous, which in turn disrupt the traditional forms
According to Potter et al. (1997), this rapid politi- of social organization. Involved in this transi-
cal transformation began in Southern Europe in tional process are a wide range of concepts in
the 1970s, spread to Latin America and parts of criminological theories, including social disorga-
Asia in the 1980s, and then moved on to areas of nization, anomie, breakdown, tension, and strain.
sub-Saharan Africa, Eastern Europe, and the These concepts help explain why modernization
Soviet Union in the late 1980s and early 1990s. is linked to rising crime rates and other forms of
LaFree and Tseloni (2006) studied whether deviance. It suggests that crime booms are most
the wave of democratization in the last half of likely to occur in industrializing societies as they
the twentieth century could explain the global are shifting from agricultural to industrial and
rise in violent crime rates. They collected annual service economies (LaFree and Drass 2002).
time-series data from WHO on homicide victim- According to LaFree and Drass (2002), the
ization rates per 100,000 population in 44 coun- modernization perspective emphasizes crime
tries for varying years between 1950 and 2000. booms which are defined as positive, rapid, and
Asian countries such as Japan, Israel, Philippines, lasting changes in crime rates. To explain crime
Singapore, and Thailand were included in the booms and test the effects of industrialization and
analysis. modernization, LaFree and Drass used annual
In this study, the democracy measure was homicide victimization data of 34 nations from
derived from evaluations of four characteristics 1956 to 1998 and assembled an annual time-
of national governments. These four characteris- series dataset of WHO homicide victimization
tics included the competitiveness of political partici- rates. The sample included three industrialized
pation, the openness of executive recruitment, the countries and regions from Asia, and they are
competitiveness of executive recruitment, and the Singapore, Hong Kong, and Japan. However, all
constraints on the chief executive. the industrializing nations in the sample were
According to LaFree and Tseloni (2006), vio- from east European and Latin American coun-
lent crime rates are curvilinear with the highest tries. In support of modernizaitonalists, this com-
rates in countries that are transitioning between prehensive study found that 70% of industrializing
autocracy and democracy. In other words, homi- nations had homicide booms.
cide rates of full democracies on average may In contrast, fewer than 21% of industrialized
not be significantly different from countries with nations did. Thus, Lafree and Drass concluded
autocratic governments. Further, countries mov- that homicide trends were a more urgent contem-
ing from autocratic to transitional democracies porary problem in the industrializing countries
will experience a significant increase in homi- than in the industrialized countries. However, the
cide rates. implications of this finding for Asian countries
20 M. Dai
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
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
2000 and 2004, non-robbery-related homicide

clearance rates averaged 94.7%, whereas rob-
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Curbing Corruption and Enhancing
Trust in Government: Some Lessons 3
from Singapore and Hong Kong
Jon S.T. Quah
ness in Asian countries according to three indicators.

3.1 Introduction
The sixth section identifies the lessons to be
learnt from Singapore’s and Hong Kong’s
According to Transparency International’s success in curbing corruption and enhancing trust
Corruption Perceptions Index (CPI) in 2010, cor- in government. This chapter concludes that it is
ruption remains a serious problem in many Asian not possible for other Asian countries to adopt
countries. Similarly, the Global Competitiveness Singapore’s and Hong Kong’s experiences
Report 2009–2010 also confirms that the public because of their contextual differences. Never-
trust of politicians is low in these countries. theless, these Asian countries should realize that
However, unlike the other Asian countries, political will is needed to curb corruption and an
Singapore and Hong Kong are not seriously effective civil service is an important prerequi-
affected by corruption as reflected in their top site for enhancing the citizens’ trust in their
two ranking and scores among Asian countries government.
on the 2010 CPI and the 2009–2010 Public
Trust of Politicians indicator in the Global
Competitiveness Report. 3.2 Corruption in Asian Countries
The purpose of this chapter is twofold. The
first aim is to identify the causes of the high level The United Nations Development Programme
of corruption and low level of public trust of poli- (UNDP 1999, p. 7) has defined corruption as “the
ticians in Asian countries. Second, this chapter misuse of public power, office or authority for
discusses how these two problems can be tackled private benefit—through bribery, extortion,
by referring to the successful experiences of influence peddling, nepotism, fraud, speed money
Singapore and Hong Kong. This chapter is or embezzlement.” However, for this chapter,
divided into seven sections. The first two sections corruption is defined as “the misuse of public or
focus respectively on the nature of corruption and private power, office or authority for private
low level of public trust of politicians in many benefit.” This modified version of the UNDP’s
Asian countries. The causes of these two prob- definition of corruption is adopted here for two
lems are analyzed in the third and four sections. reasons: it identifies the seven major forms of
The fifth section discusses government effective- corruption; and it applies to both the public and
private sectors.
Table 3.1 confirms that corruption is a serious
problem in many Asian countries as it shows that
J.S.T. Quah, Ph.D. (*)
Anti-Corruption Consultant, Singapore among the 25 Asian countries included in the
e-mail: [email protected] 2010 CPI, only three countries have attained

26 J.S.T. Quah
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 3.3 Public trust of politicians in selected Asian countries, 1999–2009/2010

1999 2000 2001–2002 2002–2003 2003–2004 2007–2008 2009–2010
1. Singapore (6.36)a 1. Singapore (6.5) 1. Singapore (6.4) 1. Singapore (6.4) 1. Singapore (6.5) 1. Singapore (6.4) 1. Singapore (6.4)
11. Hong Kong SAR 7. Hong Kong SAR 10. Hong Kong SAR 5. Hong Kong SAR 13. Hong Kong SAR 11. Hong Kong SAR 15. Hong Kong SAR
(4.92) (5.5) (4.2) (5.2) (4.4) (5.2) (4.8)
20. Vietnam (3.87) 24. Vietnam (3.4) 15. Vietnam (3.8) 12. China (4.4) 19. Malaysia (3.8) 18. Malaysia (4.6) 20. Brunei (4.4)
26. China (3.5) 29. Malaysia (3.1) 18. China (3.8) 21. Vietnam (3.8) 20. China (3.8) 22. South Korea (4.0) 26. China (4.0)
27. Taiwan (3.46) 32. China (3.0) 29. Taiwan (3.2) 24. Malaysia (3.6) 24. Taiwan (3.6) 33. Japan (3.4) 33. Malaysia (3.8)
30. Malaysia (2.95) 34. Japan (2.9) 37. Thailand (2.8) 30. Taiwan (3.2) 25. Vietnam (3.5) 45. China (3.1) 36. Vietnam (3.6)
31. Japan (2.89) 35. Taiwan (2.9) 38. Malaysia (2.8) 36. Thailand (2.6) 38. Indonesia (3.1) 52. Vietnam (2.9) 42. Taiwan (3.4)
41. Indonesia (2.26) 40. Indonesia (2.5) 40. Japan (2.6) 39. South Korea (2.3) 40. Thailand (2.9) 57. Taiwan (2.8) 52. Indonesia (3.2)
45. Thailand (2.22) 44. South Korea (2.3) 49. India (2.1) 46. Sri Lanka (2.1) 42. South Korea (2.9) 60. Thailand (2.7) 54. Japan (3.1)
48. South Korea (2.1) 47. Thailand (2.1) 51. South Korea (2.1) 50. Japan (2.0) 51. Japan (2.3) 63. Indonesia (2.6) 55. Timor-Leste (3.1)
49. Philippines (2.02) 51. Philippines (2.0) 52. Philippines (2.1) 57. India (1.9) 56. Sri Lanka (2.2) 67. Cambodia (2.6) 59. Cambodia (3.0)
53. India (1.85) 53. India (1.9) 53. Indonesia (2.0) 61. Indonesia (1.7) 72. Pakistan (1.8) 70. Sri Lanka (2.4) 67. South Korea (2.8)
56. Sri Lanka (2.0) 68. Bangladesh (1.6) 82. India (1.7) 76. Pakistan (2.3) 71. Thailand (2.7)
69. Bangladesh (1.6) 69. Philippines (1.5) 90. Bangladesh (1.5) 83. India (2.2) 79. India (2.4)
94. Philippines (1.4) 86. Timor-Leste (2.1) 81. Sri Lanka (2.3)
118. Nepal (1.7) 82. Pakistan (2.3)
119. Philippines (1.7) 117. Bangladesh (1.8)
122. Mongolia (1.6) 119. Mongolia (1.8)
127. Bangladesh (1.4) 120. Nepal (1.8)
130. Philippines (1.6)
N = 59 N = 59 N = 75 N = 80 N = 102 N = 131 N = 133
Sources: Schwab et al. (1999, p. 327, Table 8.19); Porter et al. (2000, p. 253, Table 4.16); Schwab et al. (2002, p. 408, Table 7.07); Cornelius (2003, p. 619: Table 7.12); Sala-i-
Martin (2004, p. 499, Table 7.10); Schwab and Porter (2007, p. 379, Table 1.04); and Schwab (2009, p. 349, Table 1.04)
a
The score ranges from 1 = strongly disagree to 7 = strongly agree with this statement: “Public trust in the financial honesty of politicians is very high.” The number in front of the
country indicates its rank and the score is indicated within brackets
Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong
27
28 J.S.T. Quah
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.
Table 3.6 Level of Institutional Trust in Hong Kong, 2001

Institution Very untrustworthy (%) Untrustworthy (%) Trustworthy (%) Very trustworthy (%)
Military 1 16 75 7
Courts 1 17 76 6
Civil service 3 27 68 2
Television 4 27 68 1
National government 3 34 61 3
Parliament 3 36 61 1
Local government 6 38 54 1
Political parties 7 64 29 0
Source: Lam and Kuan (2008, p. 200, Figure 8.2)
3 Curbing Corruption and Enhancing Trust in Government: Some Lessons from Singapore and Hong Kong 29
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
Table 3.7 Ease of doing business in six Asian countries, 2011

Indicator Singapore Hong Kong SAR Japan India Philippines Cambodia
Ease of doing business (rank) 1 2 18 134 148 147
Starting a business (rank) 4 6 98 165 156 170
No. of procedures 3 3 8 12 15 9
Time (days) 3 6 23 29 38 85
Cost (% of income per 0.7 2.0 7.5 56.5 29.7 128.3
capita)
Dealing with construction 2 1 44 177 156 146
permits (rank)
No of procedures 11 7 15 37 26 23
Time (days) 25 67 187 195 169 709
Cost (% of income per 19.7 19.4 20.8 2143.7 778.5 54.2
capita)
Registering property (rank) 15 56 59 94 102 117
No. of procedures 3 5 6 5 8 7
Time (days) 5 36 14 44 33 56
Cost (% of property value) 2.8 4.2 5.5 7.4 4.3 4.3
CPI 2010 rank and score 1st 13th 17th 87th 134th 154th
(9.3) (8.4) (7.8) (3.3) (2.4) (2.1)
Sources: World Bank (2010, p. 153, 168, 169, 172, 187) and http://www.transparency.org/policy_research/surveys_
indices/cpi/2010/results
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
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
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.
Table 3.10 Competence of Public Officials in Asian countries, 1999 to 2002–2003

1999 2000 2001–2002 2002–2003
1. Singapore (4.52) 1. Singapore (4.4) 1. Singapore (4.7) 1. Singapore (5.1)
2. Vietnam (4.19) 2. Hong Kong (3.8) 2. Japan (3.8) 2. Sri Lanka (4.5)
6. Japan (3.60) 3. Japan (3.6) 4. Hong Kong (3.6) 3. China (4.1)
9. Hong Kong (3.39) 4. Vietnam (3.6) 6. China (3.5) 5. Japan (4.0)
10. China (3.39) 10. China (3.4) 11. Taiwan (3.4) 9. Hong Kong (3.7)
16. Taiwan (3.28) 17. Taiwan (3.2) 25. Vietnam (3.1) 14. Vietnam (3.5)
21. India (3.07) 24. South Korea (3.0) 27. South Korea (3.0) 18. Taiwan (3.4)
34. South Korea (2.54) 26. India (2.9) 34. India (2.9) 23. Malaysia (3.1)
37. Thailand (2.45) 35. Thailand (2.6) 44. Thailand (2.6) 24. South Korea (3.1)
43. Indonesia (2.36) 37. Malaysia (2.5) 48. Indonesia (2.6) 36. India (2.8)
46. Malaysia (2.24) 43. Indonesia (2.4) 55. Sri Lanka (2.3) 37. Thailand (2.8)
49. Philippines (2.05) 45. Philippines (2.3) 58. Philippines (2.2) 46. Bangladesh (2.4)
65. Malaysia (2.1) 67. Indonesia (2.1)
68. Bangladesh (2.0) 68. Philippines (2.0)
N = 59 N = 59 N = 75 N = 80
N.B.: The score ranges from 1 to 7. The competence of personnel in the civil service is (1 = lower than the private sector,
7 = higher than the private sector)
Sources: Schwab et al. (1999, p. 242, Table 2.05); Porter et al. (2000, p. 238, Table 3.07); Schwab et al. (2002, p. 399,
Table 6.06); and Cornelius (2003, p. 604, Table 6.06)
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
Table 3.12 PERC’s evaluation of effectiveness of Asian bureaucracies, 1998–2009

Country 1998 2001 2002 2003 2004 2007 2009
Singapore 2.73 2.80 1.70 0.57 1.63 2.42 2.45
Hong Kong SAR 2.89 4.00 3.26 3.39 3.50 2.60 3.87
Thailand 6.88 7.90 7.56 7.60 7.83 6.15 4.66
South Korea 8.27 5.00 5.50 5.00 6.33 5.61 5.83
Japan 7.13 4.00 4.33 4.25 2.05 5.51 5.92
Malaysia 6.14 6.00 6.86 5.67 7.00 6.50 6.21
Taiwan 6.25 5.71 6.17 5.50 5.50 5.43 6.77
Vietnam 9.25 9.75 7.88 8.25 8.14 7.41 7.60
China 7.63 6.50 7.67 7.67 6.03 6.83 8.17
Philippines 7.00 6.50 8.25 7.33 7.42 7.60 8.33
Indonesia 7.91 9.50 8.33 8.50 7.25 8.65 8.50
India 9.00 6.80 7.83 8.00 8.15 8.47 9.34
N.B.: The score ranges from 0 = most effective to 10 = least effective
Sources: Hussain (2009, p. C5) and Wong (2004)
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
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
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
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
Table 3.14 Ranking of 23 Asian economies on Doing Business Surveys, 2007–2011

2007 rank 2008 rank 2009 rank 2010 rank 2011 rank
Economy (1–175) (1–178) (1–181) (1–183) (1–183)
Singapore 1 1 1 1 1
Hong Kong, SAR 5 4 4 3 2
Japan 11 12 12 15 18
Thailand 18 15 13 12 19
South Korea 23 30 23 19 16
Malaysia 25 24 20 23 21
Mongolia 45 52 58 60 73
Taiwan 47 50 61 46 33
Pakistan 74 76 77 85 83
Brunei NA 78 88 96 112
Bangladesh 88 107 110 119 107
Sri Lanka 89 101 102 105 102
China 93 83 83 89 79
Nepal 100 111 121 123 116
Vietnam 104 91 92 93 78
Philippines 126 133 140 144 148
India 134 120 122 133 134
Indonesia 135 123 129 122 121
Bhutan 138 119 124 126 142
Cambodia 143 145 135 145 147
Lao PDR 159 164 165 167 171
Afghanistan 162 159 162 160 167
Timor-Leste 174 168 170 164 174
Sources: Compiled from World Bank (2006, p. 6; 2007, p. 6; 2008, p. 6; 2009, p. 4; 2010, p. 4)
from doing so, honesty and incorruptibility 3.8 Conclusion

among civil servants and political leaders must
be recognized and rewarded instead of being Table 3.15 shows that, unlike Singapore and
punished. The lack of punishment of corrupt Hong Kong, the other Asian countries, with
civil servants and political leaders in many few exceptions, are much larger in land area,
Asian countries sends the wrong signal to their have bigger populations, and lower GDP per
honest counterparts and the population at large capita. Politically, Singapore has been governed
as it makes a mockery of the anti-corruption by the PAP government for more than five
laws and encourages others to become corrupt decades. The PAP’s substantial majority in
as the probability of being caught and punished Parliament has enabled it to introduce many
is low. In other words, the political systems in public policies including the White Paper on
those Asian countries plagued with corruption pegging the salaries of ministers and senior
reward those who are corrupt, and punish those civil servants to those of six professions in the
who are honest. Accordingly, these countries private sector. After 150 years of British colo-
must reverse their system of reward and punish- nial rule, Hong Kong became a Special
ment by punishing the corrupt offenders and Administrative Region of China on July 1,
rewarding those who have abstained from being 1997. More importantly, the civil service in
corrupt. Hong Kong has continued to be effective during
44 J.S.T. Quah
Table 3.15 Policy contexts of Asian countries

GDP per capita
Country Land area (sq km) Population (2008) (2008) (US$) Political system
Afghanistan 652,230 28,396,000 271 Presidential democracy
(Islamic)
Bangladesh 143,998 161,300,000 506 Parliamentary democracy
Bhutan 47,000 691,141 1,410 Constitutional monarchy
Brunei 5,765 388,190 37,053 Constitutional monarchy
Cambodia 181,035 14,700,000 818 Constitutional monarchy
China 9,560,900 1,336,300,000 3,315 Communist state
Hong Kong SAR 1,104 6,977,700 31,035 Special administrative
region of China
India 3,287,263 1,186,200,000 1,016 Federal parliamentary
democracy
Indonesia 1,904,443 234,300,000 2,246 Parliamentary democracy
Japan 377,727 127,900,000 38,559 Constitutional monarchy
Laos 237,000 6,800,000 500 Communist state
Macao SAR 29.2 549,200 39,036 Special administrative
region of China
Malaysia 332,665 27,000,000 8,141 Constitutional monarchy
Maldives 298 396,334 2,680 Presidential democracy
Mongolia 1,565,000 2,700,000 1,981 Parliamentary democracy
Myanmar 676,578 48,137,741 NA Military junta
Nepal 147,181 28,800,000 459 Federal democratic republic
North Korea 120,538 22,665,345 NA Communist state
Pakistan 803,940 167,000,000 1,045 Federal parliamentary
democracy
Philippines 300,000 89,700,000 1,866 Presidential democracy
Singapore 710 4,839,400 39,663 Parliamentary democracy
South Korea 99,274 48,400,000 19,505 Parliamentary democracy
Sri Lanka 65,610 19,400,000 1,972 Presidential democracy
Taiwan 36,179 22,700,000 17,040 Presidential democracy
Thailand 513,115 64,300,000 4,115 Constitutional monarchy
Timor-Leste 14,874 1,200,000 469 Parliamentary democracy
Vietnam 331,114 88,500,000 1,040 Communist state
Sources: Compiled from Department of Statistics (2010, p. 2, 9); Economist (2010); Government Information Bureau
(2010, p. 8, 639); Information Services Department (2009, p. 441, 470); and Schwab (2009, pp. 341–342)
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.”
In the final analysis, whether Singapore’s and

Hong Kong’s effective anti-corruption strategy
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Cybercrime in Asia: Trends
and Challenges 4
Roderic Broadhurst and Lennon Y.C. Chang
provided a gateway for offenders and deviant

4.1 Introduction entrepreneurs:
The Internet was built for research, not commerce.
Information and communications technologies Its protocols were open and unsecured; it was not
(ICT) are now part of everyday life and this is designed to hide. Data transmitted over this net
illustrated by the rapid growth of the Internet and could easily be intercepted and stolen; confidential
data could not easily be protected (Lessig 1999,
social networks in cyberspace. Whether you are p. 39).
searching for travel information or buying con-
cert tickets, you can easily perform these func- The costs of cybercrime are increasing in scale
tions at any time and in the convenience of your and gravity as the “industrialisation” of malicious
own home or office. ICT has thus become an software (or crime-ware) proliferates (Ollman
indispensable function of commerce and govern- 2008). For example, in 2009, the United States
ment. With the help of computers and the Internet, Internet Crime Complaint Centre received
businesses are now able to provide immediate 336,655 complaints reporting a total in direct
services to their customers at an unprecedented losses of USD$559.7 million (AFP 2010). Given
level of efficiency. this is an estimate based on complaints to just one
However, the Internet has also become the Internet crime reporting service in one country,
proverbial “double-edged sword.” Along with the real costs of cybercrime world-wide are con-
convenience comes the inconvenience of com- siderable. In short the rapid expansion of e-com-
puter crime. The Internet was originally built for merce and the Internet has brought many benefits
research and its founding protocols were designed but also the emergence of various forms of crime
for in-built redundancy and openness. The rapid that exploit the strengths and weaknesses of mass
evolution of the computer networks that comprise interconnectivity.
the Internet from a government and research The speed, functionality, and accessibility that cre-
focus to the e-commerce and domestic arena has ate the enormous benefits of the computer age can,
if not properly controlled, allow individuals and
organizations to easily eavesdrop on or interfere
R. Broadhurst, Ph.D. (*) with computer operations from remote locations
Australian Research Council Centre for Excellence in for mischievous or malicious purposes, including
Security and Policing, Australian National University, fraud or sabotage (United States General
Canberra, ACT, Australia Accounting Office 2010, p. 3).
As most cybercrimes are transnational in char-
L.Y.C. Chang, Ph.D.
City University of Hong Kong, acter, inconsistency of laws and regulations
Kowloon, Hong Kong across country borders makes it especially

50 R. Broadhurst and L.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)
difficult for countries to cooperate when investi-

gating cross-border cyber crimes. As Katyal located in the Asia and Pacific (i.e. Asia and
(2003, p. 180) observed, many countries will find Oceania) region. As can be seen in Table 4.1, the
it increasingly difficult to enforce their national “digital divide” is aptly shown by the immense
laws against activities which are considered diversity between countries in levels of Internet
offensive or harmful to local taste or culture. The participation. China has the most Internet users in
harmonisation of cyber-laws and regulations and the Asia and Pacific region and indeed the world
the building of cooperation and comity among and now exceeds the numbers on-line in North
nations are vitally important countermeasures America. Indeed, almost half of the Internet users
against cybercrime. The first step in that direction in the Asia and Pacific region are located in
was the Convention on Cybercrime proposed by China. India, now 100 million Internet users, is
the Council of Europe of 2001, which provided a second largest and, is followed by Japan, the
common legal framework on cybercrime. Republic of Korea (South Korea) and the
Philippines. Countries like Japan, South Korea,
Taiwan, Singapore, Australia and New Zealand
have over 70% of their total population on-line as
4.1.1 Internet Access and the Digital internet users whereas in developing countries
Divide in Asia like India, Pakistan, Sri Lanka, Bangladesh and
Nepal engage less than 10% of the population.
In March 2011, there were an estimated 2.95 bil- The Philippines, Thailand, Vietnam and to a
lion Internet users in the world (Miniwatts lesser extent Indonesia have also achieved
Marketing Group 2011). Among all Internet significant Internet penetration and are also grow-
users, 45% (about 943 million Internet users) are ing rapidly. Although China has by far the largest
4 Cybercrime in Asia: Trends and Challenges 51
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).
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.
privacy is inherent. A trend towards the develop- 4.2.1 Content Crime

ment of semantic/human intelligence methods
rather than syntactic measures is noted because Because of the political situations and the
human-based social engineering can obtain infor- tensions between some countries in the Asia,
mation in many cases where technological meth- cases of cybercrime with a political purpose are
ods fail (Chantler and Broadhurst 2008). common. These can be seen between Taiwan and
Cybercrime in Asia as elsewhere may be China, as well as between South and North Korea
caused by offenders or loose groups who are and Japan and China, as well as Pakistan and
hacking “for fun” or ego-driven, but can include India (Broadhurst 2006a). For example, Taiwan’s
political or ideological motivation, hatred, or Ministry of National Defence was hacked and the
simply to earn a profit. However, the involvement computers in the Minister’s Office and the
of traditional criminal groups or new criminal Secretary’s Office were infected with trojans and
networks is likely to be associated with financial spyware in 2005 and in 2006. The National
deception and theft (Broadhurst and Choo 2011). Security Bureau in Taiwan claimed that a Chinese
However, when an attack occurs, it is often cyber-army launched more than 3,100 attacks
unclear who is behind the attack, where it origi- against Taiwanese Government systems in 2008,
nates or their motive (Barboza 2010). For exam- and this did not include attacks against the private
ple, Sony, the Japanese electronics group, was sector (Chang 2011; Huang 2006; Xu 2009).
hacked into in April 2011 and the names, Similar occurrences can be seen between
addresses, emails, birth dates, phone numbers North and South Korea. For example, govern-
and other information in respect of 24.6 million ment agencies, banks and businesses in South
PC game customers were stolen from its servers Korea have suffered serious cyber attacks. The
(Telegraph 2011). Hackers could have earned a South Korean intelligence agency believes that
lot by on-selling this personal information to these attacks were not conducted by individuals,
“carding” groups (websites and users with a focus but were prepared and staged by “certain organi-
on credit card fraud) or others who may use the sations or states” and that North Korea was the
stolen identity to de-fraud e-commerce enter- main suspect (Parry 2009).
prises. While Sony was pursuing legal action Since the risk of cybercrimes, regardless of
against the hacker groups “GeoHot” and “Graf_ motive or the role of organised crime, has
Chokolo,” who allegedly hacked into their sys- expanded via botnets. How best to prevent cyber-
tem, Sony suffered additional cyber attacks which crime and to deter cyber criminals has become a
included a distributed denial of service attack major policy question for states and international
(DDoS): an attack which makes Web sites or agencies. The transnational nature of cybercrime
other network services unavailable to Internet basically requires that states enact laws to har-
users by flooding it with traffic—from another monise definitions of criminality and enhance
hacking group “Anonymous”—an on-line activ- mutual cooperation across states.
ist and civil disobedience network. Although
“Anonymous” are allegedly involved in the
revenge, DDoS attacks on Sony over Sony’s pur- 4.3 The Council of Europe
suit of “GeoHot” and “Graf_Chokolo,” also Convention on Cybercrime:
alleged “Anonymous” hackers (Takahashi 2011), Budapest Convention
others argue that given denials by Anonymous
that the motives were more likely profit-driven A key problem in the prosecution of cybercrime
cyber criminals (Poulsen 2011). Such cases rep- is that all the elements of the offence are rarely
resent cybercrime where both profit and ideologi- found in the same jurisdiction. Often the offender
cal reasons may be involved: the hackers saw and the victim and even the evidence are located
Sony as profiteering from the Internet gaming in different jurisdiction thus requiring a high
industry. degree of cooperation between the law enforcement
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).
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
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.
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.
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
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):
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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Triad, Yakuza, and Jok-Pok: Asian
Gangsters in Cinema 5
Paul T. Lankin and Phillip C. Shon
order maintenance, and a preexisting distribution

5.1 Introduction network for American goods and relief funds
(Yamagata 2001), in addition to the usual vices
Q. Lu (aka H. Ming) fetched meals and ran petty such as gambling and prostitution (Saga 1991),
errands for his bosses—a gopher. He was like contemporary Japanese gangsters appear to have
other youths in a North American city Chinatown moved well beyond the traditional forms of ille-
where he worked menial jobs in the hopes of galities. In fact, the Japanese National Police
being noticed by a Dai Lo (big brother) or a gang Agency recently reported that the yakuza had
leader. He was eventually noticed by his first penetrated the stock exchanges in various Japanese
boss, A. Tran. From there, Lu’s career as a gang- cities by manipulating and trading shares of pub-
ster steadily rose, from running errands to assum- licly listed companies, thus shaking the confidence
ing protection and security duties for Tran’s of the trading public and investors (Lewis 2008a).
gambling dens and brothels. Tran, however, was In fact, Japanese gangsters had gone so far as to
assassinated in 1991 in Toronto’s Chinatown over set up ghost companies as a way of manipulating
a gambling debt. Lu’s second boss, L. Cham, was stock prices, and creating financial auditing firms
also assassinated in 2000 by a hitman from to sign-off on falsified accounting and fabricated
Quebec. Thus, almost by default, the former company books (Lewis 2008b).
gopher assumed the role of a gangster boss and In January of 2010, the United States Drug
took over the loan sharking and other illegal Enforcement Administration (DEA) officials
operations in the city (e.g., marijuana grow oper- found close to 50 g of methamphetamine hidden
ations, gaming dens). Lu incurred a large sum of inside a photo album. The drugs were shipped to
gambling debt in 2007 after a trip to Macau; his South Korea via Mexico and the United States
daughter reported him missing shortly after his using the global shipping company FedEx. South
return. In May of 2010, Lu’s body, stuffed inside Korean law enforcement officials and DEA inves-
a barrel, was pulled out of Lake Ontario (see tigators set up a sting operation to arrest the cul-
Lamberti 2010). prits. The investigation ultimately led to the arrest
While the yakuza was inaugurated in the mod- of Mr. Seo and Mr. Moon, both Korean gangsters
ern era in the ashes of post World War II (WWII) living in Korea (“South Korea, USA cooperate in
Japan by returning soldiers who provided security, crackdown on drug trafficking” 2010). Such
changes in organized crime business arose,
according to police, after the Korean National
P.T. Lankin, BA. • P.C. Shon, Ph.D. (*)
Police Agency began a massive crackdown
University of Ontario Institute of Technology,
Oshawa, ON, Canada L1H 7K4 against organized crime groups—gangsters—in
e-mail: [email protected] South Korea in August of 2008, for extorting

66 P.T. Lankin and P.C. Shon
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
organized crime groups by allowing them to

expand and conduct their operations without 5.2 Background
disruption and without the fear of citizen inter-
vention (Chu 2005). Therefore, it behooves us to There are an abundant number of active Asian
examine the accuracy of previous claims. Are organized crime groups that are often depicted in
Asian gangster films likely to perpetuate fear? films, in Asia, as well as internationally (Berry
We provide a provisional answer in this paper. et al. 2003). The most prominent organized crime
Fourth, we did not use representations of Asian groups in Asia are the triads, the Green Gang,
gangsters in Western (i.e., Hollywood) films. Chinese refugee gangs, the Jiaotou brothers, and
While such a study would have been valid—and common Chinese/Taiwanese street gangs who, as
interesting—in its own right, we had serious a whole, operate in a variety of illicit and lucra-
reservations about using portrayals of Asian tive activities (Huang 2006). These groups can be
gangsters in Western cinema. That is because classified as traditional hierarchies, hybrid orga-
Hollywood has not been kind to Asians, Chinese nizations, and/or criminal networks (Xia 2008).
men in particular. Asian women have usually The triads are the largest international Asian
been cast as the exotic, enigmatic, and sexualized organized crime groups with over 300 factions
“dragon lady” of the Orient (Said 1978). And known as “umbrella groups,” such as the Sun Yee
rather than telling the story of Asian women On, 14K, and Wo Shing Wo (Chu 2005; Bolz
and their unique and culturally nuanced histories 1995; Finckenauer and Chin 2006). Although
and contingencies, they have been constructed as Asian organized crime groups vary in size,
the object of European males’ desire, as well the flexibility, and structure, monopolistic organiza-
desiring beings of European men (Chan 2001, tions such as the triads have a multigenerational
2007; Kang 1993; Kim 2006). Asian men, on the hierarchy that is universal, regional, and territo-
other hand, have been tacitly constructed as asex- rial in their illicit activities to ensure stable clien-
ual creatures (Okazaki 2002), undesirable as tele and long-term profits (Zhang and Chin 2003;
objects of female sexual desire, unworthy and Berry et al. 2003).
incapable of sexual and emotional intimacy by Internationally, triads have begun to form
virtue of their race and their race alone (Chen affiliations with other criminal syndicates and
1996). Or when Asian men have appeared in entrepreneurs, such as the tongs in the United
“masculine” roles, they have still been relegated States, in order to expand their operations and
as nonsexual martial artists (Chan 2000) who influence globally (Bolz 1995). While common
speak with a comedic Asian accent (Park et al. parlance conflates triads and tongs as synonymous
2006), or perverts and criminals (Shek 2006). entities, there is a distinction that needs to be
Thus, we did not want to begin this paper with made. Triads are a criminal group whose sole pur-
such a heavy historical baggage from the start. pose is to make money through illicit activities
Instead, we wanted to examine the cinematic such as extortion, drug trafficking, gambling, and
lives of Asian gangsters in their own turf, told by racketeering (Finckenauer and Chin 2006). Tongs,
Chinese, Japanese, and Korean—Asian— on the other hand, are community and civic orga-
screenwriters and directors, through films that nizations within Chinatowns; and while tongs
were intended for those respective audiences originally began as operators of opium dens and
(Park 1992). Through a critical examination of gambling halls, they are more accurately described
portrayals of Asian gangsters in cinema, we as intermediaries between ethnic Chinese com-
attempt to remedy the gaps noted in the preced- munity and the English-speaking world—a com-
ing paragraphs. By doing so, we hope to be able munity self-help organization (Chin 1995). That
to contribute to the literature in the following fact, however, does not mean that tongs do not
areas: (1) Asian criminology, (2) Asian gang exert influence—positive and negative—in their
studies, (3) Asian cinema studies, and (4) Asian communities (Kelly et al. 1993a, b). As Asian
masculinity. organized crime groups form relationships and
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
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
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.
exhibited by earlier characters in previous cine-

5.3 Asian Gangsters in Cinema matic periods (Lu 1997), Pang (2002) notes that
Milky Way films of the 1990s showed anxiety;
Films exert an effect on two levels. At the macro- such a trend in the storylines of films reflects the
level, they critique society, its ills, and evils; at cultural and economic uncertainty following the
the micro-level, they proffer identification Asian financial crisis of the 1990s.
fantasies for individual viewers (Black 1991). The recent successes of Korean directors and
That is, films in general, and crime and justice films, such as Park Chan-wook and Oldboy, on
films in particular, criticize the way the govern- the international circuit also highlight the role of
ments and criminal justice systems mistreat their extraneous factors that affect the quality and con-
citizens and prisoners, or illuminate tyranny and tent of films (Shim 2006). The history of films in
police abuse of power; films may also invite Korea illustrates the external factors and their
viewers to relish the heroic and yet defiant nature impact on the contents and quality of film rather
of an outlaw or a rogue hero. Films perform this well. Korean films were heavily censored by the
double move: they reflect and reify culture and Korean Government officials until the late 1990s
ideology as culture (Rafter 2006). Films are also (Park 2002). Only after the directors were released
intensely private and secretive sources of emo- from the tyranny of censorship did international
tions, for each viewer must decipher the plot and blockbusters such as JSA and Shiri emerge from
viscerally experience the emotions of the protag- the Korean cinema landscape (Doherty 1984;
onists, antagonists, heroes, and antiheroes. That’s Park 2002).
why films allow viewers to experience joy, ela- That is to say that government censorship of
tion, fear, and repulsion. Some have argued that films and other works of art is, in turn, tied to
such emotions can be replicated on a national political stability. Dictatorships and authoritarian
level. For instance, national specific cinemas pro- regimes—governments that are not democrati-
duce cultural myths and identification structures cally formed—worry that artistic content that
that reinvigorate a sense of nostalgia and com- criticizes and challenges the regime’s legitimacy
munity in the viewers (Park 2002). Yet, despite will lead to political unrest, which then they must
such private character of films’ intent and enjoy- repress using coercion. Again, South Korea is a
ment, they are also public in another way in that good example. Under the totalitarian regime of
they are shaped by social, economic, and political Park and Chun, films that criticized the govern-
forces external to the films themselves. ment in any way were censored (Lee 1980; Suh
For example, scholars have noted that the 1982). Only when this government control of arts
tenor of yakuza movies changed from pre-WWII was lifted did creative works emerge. Thus, the
assembly line production movies with no nexus between film, society, culture, and govern-
definitive national identity to ones that attempted ment is intertwined in complex ways that mutu-
to affirm a positive and strong sense of Japanese ally reinforce one another. Films can be sources
identity in the wake of defeat in WWII (Schilling of enjoyment, but they can also be the impetus for
2003). Yakuza movies portrayed gangsters as political protest and insurrection. Other scholars
mythopoeic figures, solitary rule breakers lead- have already attested to the perception altering
ing a lonely existence, with the aim of being rein- effects of crime programs (Dowler et al. 2006;
tegrated back into society. Honk Kong films, too, Paulsen 2002; Websdale and Alvarez 1998). This
experienced such a shift (Lu 1997). Films that leads us to ask what viewers of Asian gangster
were produced out of one major production com- films might see. How are such films likely to
pany repeatedly portrayed male figures who were affect viewers? To answer that question, this
mired in an unexplainable supernatural force and study analyzed films in the gangster genre in the
attempting to extricate themselves from it (Pang respective countries of China (Hong Kong),
2002). Rather than the confidence and bravado Japan, and Korea.
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
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
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-
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
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
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-
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
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
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
6.1 Introduction1 intellectual property protection and market access

practices in foreign countries.2 These concerns
are also embodied in the World Trade Organisation
The marriage of digital and networked technolo- (WTO) Trade-related aspects of Intellectual
gies has resulted in the World Wide Web and the Property Rights (TRIPS), which is a multilateral
cyberspace it creates being constructed of infor- international agreement on intellectual property.
mational flows that express ideas. It is the control In response to direct international pressure to
over the means by which these ideas are expressed reform their IP regimes, Japan (Tessensohn and
which lies at the heart of the various contempo- Yamamoto 2005) and Taiwan (Chiang 2012) have
rary debates over intellectual property, regardless introduced specialist IP courts in 2005 and 2008,
of jurisdiction. The products of the marriage of respectively, to increase enforcement of IP law and
digital and networked technologies are global reduce litigation waiting times. The main concerns
and they affect the Asian continent as much as of the IP courts are typically patents and copyright
any other, with the possible exception of (Chiang 2012), but online IP issues, which are the
Antarctica—for obvious reasons. Yet, under- focus of this chapter, are quite different in nature.
standings, especially in the West, of Asian juris- They tend to include the appropriation of trade-
dictions are pre-problematised and pre-sensitised marked symbols of trust, using the Internet to steal
to the impacts of what are perceived as IP crimes intellectual property, artefacts and industrial
because of prior and broader concerns over their secrets. Furthermore, online IP issues in Asia tend
relatively low enforcement of patents, trademarks to have different (informational) characteristics to
and copyright IP law by international trade part- the main IP debates and fall outside the remit of
ners (mainly major western nations). Such con- the IP courts. The paradox is that not only is the
cerns are expressed through mechanisms such as degree to which low IP law enforcement in Asia
the US Special 301, which is an annual review of contestable because “IP theft” is often cultural
issue, but also the IP issue in Asia has become
politicised as outlined above, with Asia becoming
1
This chapter develops and builds upon Wall and Yar the “criminal other” (see Yu 2003, and also
(2010)
Schwabach 2008). In the online world the basic
D.S. Wall, Ph.D. (*) technical IP issues remain similar to elsewhere.
School of Applied Social Sciences,
The informational flows that span the Internet’s
University of Durham, Durham, UK
e-mail: [email protected] various networks are the product of creative
M. Yar, Ph.D.
2
Department of Social Sciences, See further, International Intellectual Property Alliance
University of Hull, Hull, UK (IIPA) www page <http://www.iipa.com/special301.html>

84 D.S. Wall and M. 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
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
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.
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-reading 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
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
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 proof 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
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).
6.7.2 Incorporating Additional creation of the Counterfeiting Intelligence

Provisions for Criminal Bureau, the International Intellectual Property
Sanctions into National Laws Alliance, the International Anti-Counterfeiting
and International Treaties Coalition, the Alliance Against Counterfeiting
and Piracy, the Coalition for Intellectual Property
In recent years the incorporation of additional Rights, the Artists Coalition Against Piracy, the
provisions for criminal sanctions into both inter- aforementioned AACP and FACT as well as
national treaties and national laws has taken numerous existing trade organisations that have
place. At the national level, we can note for established specialist groups and initiatives to
example Section 107 of the Copyright, Designs combat film piracy (such as the MPAA and the
and Patents Act (1988) in the UK, which places RIAA). Such organisations purport to “lift the
local administrative authorities (such as Trading burden of investigation from law enforcement
Standards departments) under a duty to enforce agencies” (AACP 2002, p. 2) by engaging in a
criminal copyright provisions, and significantly range of increasingly intensive policing activi-
strengthens the penalties available in comparison ties. Where public agencies have been reluctant
to the previously existing Copyright Act of 1956 to invest time and resources in tackling IP viola-
(Dworkin and Taylor 1989, pp. 121–122; Bently tions, industrial and commercial interests have
and Sherman 2001, p. 1031). In the USA, the No “filled the void”. In addition to intelligence gath-
Electronic Theft Act (1988) makes provision for ering and undercover operations, they have
up to 3 years imprisonment for convicted attempted to bring intellectual property crime
“pirates”; it also extends the applicability of sanc- into the criminal justice mainstream through, for
tions beyond those engaging in piracy for com- example, the appointment of specialist liaison
mercial gain, to include for example the personnel to “assist” and “advise” responsible
not-for-profit digital trading engaged in by file- agencies in the detection and prosecution of
sharers (Drahos and Braithwaite 2002, p. 185). “copyright theft”. Recent years have seen such
Concerted political pressure has been brought to organisations step up their activities in “emerging
bear on governments in Asia to enact additional markets” such as the Asia-Pacific region, discern-
legal prohibitions against piracy in its various ing the low priority that is currently given to
forms. Recent years have seen initiatives to intro- intellectual property rights enforcement; for
duce new copyright laws in countries such as example, in China IP enforcement is an adminis-
Thailand, the Philippines and Korea (Bangkok trative rather than criminal justice matter, result-
Post 2009; Baldemor 2010; Pfanner 2011). At an ing in very limited levels of police attention (IIPA
international level, Article 61 of the 1994 TRIPS 2011, p. 1). Governments have themselves
agreement establishes a mandatory requirement responded to concerted pressure from these
for signatories to make criminal provisions groups by establishing intellectual property strat-
against commercial copyright violations. Hence egies and specialist units within criminal justice
the extensions of available criminal sanctions and agencies to address intellectual property viola-
the greater willingness to pursue them have, taken tions. The UK, for example, has the local trading
together, significantly reconfigured piracy, ren- standards organisations which operate at a local
dering it graver in an attempt to stem its growth. level; the e-crime unit of the Serious and
Already noted has been the recent increase in Organised Crimes Agency, SOCA (from 2012
policing and enforcement activity, in which part of the UK National Crime Agency), investi-
industry organisations are playing a leading role. gates serious national infringements. In the USA
It is also worth noting here the proliferation of there is the FBI’s Internet Fraud Complaint
industry-financed “anti-piracy” organisations Centre (IFCC), which also takes on the responsi-
whose raison d’etre combines research, intelli- bility for policing some intellectual property
gence gathering, policing, education and lobby- crimes. At an international level, Interpol has
ing activities. The past two decades have seen the established an Intellectual Property Crimes Unit
(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
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
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
7.1 Introduction However, neither the legal nor the practical

definition distinguishes the individual oppor-
tunist from “organized” insurance fraudsters.
Although the exact detail will vary across legal Nevertheless, this kind of distinction is cer-
systems, in most advanced democratic countries, tainly recognized within the private insurance
the legal definition for fraud activities in relation industry itself, which has concentrated its inves-
to any of the parties generally requires the pres- tigative resources on forms of “organized”
ence of at least three elements: material misrep- activity—while recognizing that there is much
resentation, in the form of concealment, “padding” and claims-inflation activity by
falsification, or untruth; intent to deceive; and “ordinary” opportunists.
aim of gaining unauthorized benefit. At the prac- In this study, it is contended that the analytical
tical level, insurance fraud has many dimen- distinction is important because the social reac-
sions—especially given the phenomenon’s tions to the two types of fraudster are constructed
evolving and dynamic nature. Many commenta- in a very different way under conditions of politi-
tors classify fraudulent activities under three cal economy and culture. Arguably, the motiva-
main categories: exaggeration of an otherwise tion and epidemiology of “organized” insurance
legitimate claim; premeditated fabrication of a fraud are in general similar to other types of
claim; and fraudulent known disclosure or mis- “organized” criminal activity—broadly under-
representation of material facts. stood as the same across the world. This “hard-
Both legal and practical definitions “share core” fraud, in Ericson and Doyle’s (2004) words,
the distinctive common characteristic that, occurs when someone deliberately plans or
unlike bad debts, for example, or conventional invents a loss covered by their insurance policy in
property crime such as burglary, they are not order to receive payment for damages that may or
self-disclosing. Their essence is to appear as may not be real. The “social reaction” to orga-
normal and to be processed and paid in a routine nized insurance fraud in all political economies
manner” (Clarke 1990, p. 1). It follows that and cultures is arguably the same—that is, they
insurers will normally only have an idea of the are, like violent and sex criminals, seen as “crim-
nature and extent of a fraud if they take specific inal actions” and morally culpable (Coalition
detection measures. Against Insurance Fraud, CAIF 2007).
Prevention measures and more regulatory
activity against organized insurance fraudsters
S. Jou, Ph.D. (*)
are seen as legitimate by the private insurance
Graduate School of Criminology, National Taipei
University, Taipei, Taiwan industry, the State, and the general public.
e-mail: [email protected] However, in relation to “opportunist” fraud, in

100 S. Jou
Fig. 7.1 Donald Cressey’s “the Fraud Triangle”
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
Table 7.1 Characteristics of three political economic regimes

Socio-economy Neoliberal Social democratic Confucian
Economic model Free market, free choice Universalistic Quasi-market
Role of the State • Minimum governance Great state welfare Relatively limited state welfare
• Limited state welfare
Role of individual Individual responsibility Collectivism Collectivism
Risk • More risks • Less risks • Less risks
• Encouraging risk taking • Encouraging risk taking • Discouraging risk taking
• Self risk management • Less risk management • Informal risk management
Social relationship Distrust, contractual Trust Trust within inner relationship
circle
Assumptions on human Self-interest Altruism Mutual help within inner
nature relationship circle
Country exemplars USA, UK, Canada, Australia Norway, Finland, Sweden China, Taiwan, Singapore
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
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
thumb (based on the surveys done in the USA or

7.10 Opportunist Insurance Fraud Australia). In one open speech delivered by the
in Three Countries Taiwanese Chief Commissioner of the Financial
Supervisory Committee, she mentioned a likely
The Association of British Insurers reports that loss in the range of NTD 130 billion (approxi-
between 1996 and 2006, claims paid have mately three billion euros—at May 2008
increased by 42%, from £13.4 billion in 1996 to exchange rate) insurance fraud in 2006 based on
£19.1 billion in 2006 (ABI 2007). Among the dif- estimates in the USA (Taiwan Insurance Bureau
ferent types of insurance, motor claims was the 2008). There is no evidence to check the validity
most frequent, about £8 billion (about 43%) in of this estimation. However, in one telephone
2006, followed by £4.6 billion property claims poll, 38% of respondents were said to have made
and £2.8 billion health and accident claims (ABI a claim, and almost 80% of them successfully
2007). An ABI booklet published in 2006 obtained their compensation from insurance
declared that bogus and inflated insurance claims companies (Taiwan Institute of Insurance Industry
in the UK cost over £1.5 billion every year. ABI 2005). If we calculate the probability of a claim
also surveyed 1,100 companies and found that denied by insurance company as possible fraudu-
the majority of fraudulent claims arise from the lent cases, it would come up with 8% (possibly
exaggeration of genuine incidents. Up to 15% of overestimated). If this number is close to the real-
commercial insurance claims in their survey were ity, and given a total of NT$1,300 billion insur-
exaggerated in this way (ABI 2005). Another ance claims every year, the possible cost of
independent survey undertaken in 2002 by fraudulent claims amounts to about NT$104 bil-
Karstedt and Farrall (2006) found that 7% of lion annually. The most popular claims came
interviewees aged 25–65 admitted to have pad- from life and damages/theft to the automobiles
ded an insurance claim in their lifetime and 22% (about 60% of total nonlife insurance claims) and
had the intentions to do so. Karstedt and Farrall then came marine, fire, and personal injuries each
refer to people who commit such crime, along accounting for 10% of the total nonlife claims
with other types of “everyday crime,” as “those (Taiwan Insurance Bureau 2008).
who think of themselves as respectable citizens, Table 7.2 summarizes key facts of insurance
and who would definitely reject the labels of fraud in the three countries. As expected, the UK
“criminals” and “crime” for themselves and their and Taiwan have higher estimated opportunist
actions” (Karstedt and Farrall 2006, p. 1011). insurance frauds and much higher costs to the
This is simply another way of describing “oppor- industry than Finland. One common characteris-
tunist” insurance fraud. tic across the three countries is that automobile
In Finland, it is estimated that every year, insurance claim happens to be the most popular
insurance companies uncover 45–55 million euros insurance type (and yet perhaps the easiest type
in fraudulent insurance scams. In a survey carried to pad a claim?).
out by the Federation of Finnish Financial Services
2007, 5% policyholders scam money from insur-
ance companies; 30% of them approved of exag- 7.11 The Rise of Antifraud
gerating damages when filling out insurance (a “Campaigns”: The Public
close definition of “opportunist fraud”). About Discourse
half of the claims concern damages to automo-
biles, and one-third of the claims for household or Traditionally, and certainly prior to the late 1980s,
company damages (YLE News 2008). most insurance companies, regardless of country
In Taiwan, as of 2008, no survey has yet been location, sought not to draw attention to their
undertaken to estimate the extent of insurance level of individual fraud victimization.
fraud. It is usually estimated that 10% of the total Presumably, this was due to the fact that the
claims is fraudulent by one accepted rule of insurance companies have a strong motivation
Table 7.2 Insurance fraud in three countries

Dimensions UK (2006) Finland (2007) Taiwan (2006)
The total annual claims £ 19.1 billion US$2.2 billion NT$1,300 billion
Estimated insurance fraud 7–15% 5% 8%
Type of policy most claimed • Automobile • Automobile • Life
• Property/accident/health • Property damaged/theft • Automobile
Cost of insurance fraud £1.5 billion 45–55 million euros NT$104 billion
US$100–200 million (2 billion euros)
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
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 arrangement, 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
began only at the turn of the twenty-first century.

Another difference that can be identified is that 7.14 Conclusion
most of the UK responses involved cooperation
and greater effort by the industry itself, whereas This paper began by considering the difference
in Taiwan, the government set out the first moves between organized and opportunist insurance
to push insurers, working within multi-govern- fraud. Organized crime is well described in the
mental agencies, and Finland seems to grant existing published literature, and indeed the
more responsibility to individual insurers and opportunist fraudster can be seen as someone who
later the FFFS. recognizes the advantages provided by the situa-
By comparing the three countries, it is evi- tion. Using the fraud triangle model proposed by
dent that the criminalization of opportunist the American criminologist Donald Cressey, it is
insurance fraud, the response to it, the selec- easy to understand opportunist insurance fraud
tion of private/public involvement, and the via increasing pressure, rationalization, and crim-
making of individual/cooperative efforts are inal opportunity. In the insurance and risk man-
indeed derived from the characteristics of the agement literature, moral hazard by the insured is
wider political economy. In the UK and Taiwan, believed to be the cause of all insurance fraud.
an estimated 7–8% of insurance claims are Prevention hence can be easily undertaken via
fraudulent. Both countries have embraced the direct reduction in opportunities and criminaliza-
abundant opportunities provided by the market tion via severe penalties. Data sharing and min-
economy and yet suffer from the inevitably ing, network analysis, specialized investigation
higher moral hazard and moral risk conse- units, claim management strategies (i.e., more
quence upon it. An important distinction, how- obstacles in the way of making a claim), prosecu-
ever, is that opportunist insurance fraud in the tion, conviction, and public shaming are taken to
UK appears to be portrayed as a “moral war” be useful measures to prevent it.
between “rotten” business and “dishonest” Such a fraud triangle model however under-
customers whereas in Taiwan it is perceived states the reasons why the making of and reaction
both as threat to national and social security to opportunist insurance fraud take different path-
and as an individual financial problem. The ways in different countries. Moral hazard theory
reason for this lies in Taiwan’s singular politi- also un/consciously underestimates the moral
cal relationship to the People’s Republic of risk caused by the competition of the insurer and
China. As a close neighbor, China has a less the professional (i.e., medical profession, car
regulated market and combined with possibili- technicians, or police who are sometimes linked
ties of frequent travel, it is seen as the source to the occurrence of insurance fraud). Furthermore,
of an increasing number of overseas staged two issues remain puzzling from the existing
accidents/deaths and as a market for stolen criminological theory and moral hazard theory:
automobiles and parts. A further reason is the one is how insurance companies, given the esti-
recent breakdown of traditional family ties in mated grand scale of insurance fraud, seemingly
Taiwan, which is seen to weaken the informal have been largely unaffected and manage to
security net and place more pressure on indi- remain highly lucrative. The second puzzle is that
viduals. These explanations are commonly current prevention measures seem to be rather
accepted by government, criminal justice agen- silent on reducing individual pressures and appear
cies, and the public in Taiwan. Finland, on the ineffective in engaging with the average person’s
other hand, in general has been less willing to moral rationalizations about their everyday
work with the insurance industry; hence crime—for instance—the padding of a claim.
“opportunist” insurance fraud remains a pri- What is missing in this picture? Put simply,
vate matter to be solved by individual insur- it is the even larger picture (context). The fraud
ance companies or seen simply as a threat to triangle model and moral hazard/risk theory
private corporate security. successfully capture aspects of insurance fraud.
112 S. Jou
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
government policy and behavior, one can, he Beck, U. (1992). Risk society: towards a new modernity.
says, distinguish a “knave” strategy on “knightly” London: Sage.
Bureau, T. I. (2008). Statistics of insurance in Taiwan.
behavior and a “knight” strategy on “knavely” Taipei: Insurnce Bureau.
behavior (Le Grand 1997). Le Grand defines Button, M., Johnson, L., Frimpong, K., & Smith, G.
“knaves” as people motivated primarily by their (2007). New directions in policing fraud: The emer-
own self-interest, “knights” are predominantly gence of the counter fraud specialist in the United
Kingdom. International Journal of the Sociology of
public spirited or altruistic, and “pawns” are Law, 35, 192–208.
people who are essentially passive or unrespon- Cavadino, M., & Dignan, J. (2006). Penal policy and
sive (Le Grand 1997, p. 154). Arguably, the poli- political economy. Criminology and Criminal Justice,
tics of the neoliberal economy is a “knave” 6(4), 435–456.
Clarke, M. (1989). Insurance fraud. British Journal of
strategy which introduces manufactured fears Criminology, 29(1), 1–20.
and anomie in modern life that, in turn, incentiv- Clarke, M. (1990). The control of insurance fraud: A com-
izes the average person to act as an opportunist parative view. British Journal of Criminology, 30, 1–23.
fraudster or a criminal of everyday life—to be Coalition Against Insurance Fraud (2007) Insurance fraud
and why we need to counter it. www.insurancefraud.
“knaves” regardless of their human nature as org (last visit 30/09/2011).
knights, knaves, or pawns. And it is this bigger Coalition Against Insurance Fraud. (2008). People’s atti-
picture in relation to opportunist insurance fraud tudes about fraud. www.insurancefraud.org (last visit
that is missing in both the basic fraud triangle September 30, 2011).
Coalition Against Insurance Fraud. (2008). Insurance
model and moral hazard theory. In an investiga- fraud: The crime you pay for. www.insurancefraud.
tion using an ideal-type typology, and examining org (last visit September 30, 2011).
macro-level political economy and culture, it is Cressey, D. R. (1953). Other people’s money: A study in
easy to be accused of naïve reductionism—but the social psychology of embezzlement. Glencoe, IL:
Free Press.
our view is that such interrelationships need to Cressey, D. R. (1986). Why managers commit fraud.
be fully recognized at the explanatory level while Australian and New Zealand Journal of Criminology,
also noting that the nature of such relationships 19, 195–209.
is likely to be highly mediated rather than simple Cullis, A. R. (1987). The motor insurance anti-fraud and
theft register: Six month on. London: Association of
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ferent methods and sources of data to explore Ericson, R. (2007). Crime in an insecure world.
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Ericson, R., Barry, D., & Doyle, A. (2000). The moral haz-
ards of neo-liberalism: Lessons from the private insur-
Acknowledgements I wish to acknowledge the helpful ance industry. Economy and Society, 29(4), 532–558.
comments of Gloria Laycock and others at the Jill Dando Ericson, R., & Doyle, A. (2004). Criminalization in pri-
Institute of Crime Science (University College London) at vate: The case of insurance fraud. In Law Commission
a seminar presentation of this research; John Braithwaite of Canada (Ed.), What is a crime? Defining criminal
(Australian National University), Peter Grabosky conduct in contemporary society. Vancouver:
(Australian National University), Adam Graycar (Rutgers UBC press.
University), and Bill Hebenton (University of Manchester) Ericson, R., & Doyle, A. (2006). The institutionalization of
also gave time to comment on a previous draft. The nor- deceptive sales in life insurance: Five sources of moral
mal authorial caveat remains. risk. British Journal of Criminology, 46, 993–1010.
Esping-Andersen, G. (1990). The three worlds of welfare
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Drug Abuse and Drug Trafficking
in Asia 8
Huan Gao
producing country. It is now the second largest

8.1 Introduction (UNODC 2010d).2 Lao PDR is the world’s third-
largest opium producer. In addition to producing
With rapid globalization, illicit drug trafficking
the most opium, Afghanistan also produces the
and misuse have become worldwide phenomena
most cannabis resin (UNODC 2010a).3 Asia,
from which almost no nation has immunity. Due
more precisely Southeast Asia, also claims the
to the availability of drugs and cultural traditions
biggest share of the world’s ATS market.
of using illicit drugs, different types of drugs may
Myanmar is also a major methamphetamine
be trafficked and abused in different regions and
producer (UNODC 2010d), and India has become
countries. Based on the types of drugs trafficked
a source of ketamine (UNODC 2010c). Illicit
and abused, three dominant transnational drug
drugs produced/manufactured in Asia are not
markets are recognized globally, namely, markets
only trafficked and consumed inside Asia, but
for heroin, cocaine, and cannabis. While the
they are also distributed to the underground
markets for these traditional drugs have tended to
market in other continents, such as North America
remain steady at the global level over the past
and Europe.
decades, amphetamine-type stimulants (ATS)
Illicit drug trafficking has brought about
have quickly gained popularity worldwide, in
significant societal, political, and legal conse-
particular among a young user population.1
quences for Asian countries, in particular the
Asia is renowned for its long history of opium
major producer countries (Cornell and Swanström
cultivation and use. For this reason, the world’s
2006; Dupont 1999). Studies have found that
three largest opium producers are all located in
illicit drug trade in Asia has been closely linked
Asia. Before Afghanistan’s opium production
to social instability, widespread official corrup-
surpassed that of the Golden Triangle in the late
tion, and transnational crime in the region (Chalk
1980s, Myanmar, as the major opium producer in
2000; Cornell 2006). The drug trade not only
the Golden Triangle, was the world’s top opium-
challenges the national sovereignty of states
(Dupont 1999) but also poses increased threats to
1
According to the reports from the United Nations, ATS
refer to a group of synthetic substances comprising
amphetamine, methamphetamine, methcathinone, and 2
There are four countries in the Golden Triangle: Myanmar,
ecstasy-group substances (MDMA and its analogues). In also known as Burma, Lao PDR, Vietnam, and Thailand.
different countries, ATS street names may differ (UNODC 3
This estimation was based on the high resin yields mea-
2009b).
sured in Afghanistan (145 kg/ha), which are four times
H. Gao, Ph.D. (*) higher than those in Morocco (36 kg/ha measured in
California State University, Stanislaus, CA, USA 2005)—another major cannabis production country
e-mail: [email protected] (UNODC 2010a).

116 H. Gao
both regional and international security.4 As the

second-largest illegal transnational business in
8.2 Drug Trafficking in Asia
the world (next to the arms trade), the illicit drug
The legal framework for addressing illicit
trade’s link to terrorism has been also observed
international drug trafficking is based on three
by scholars (Jackson 2006; Mccoy 2000).
major international drug control treaties: the
In Asia, a major source region for opium,
Single Convention on Narcotic Drugs of 1961
cannabis, and ATS, the number of people who
(as amended in 1972), the Convention on
abuse illicit drugs is significant. The social harms
Psychotropic Substances of 1971, and the United
brought about by illicit drug abuse are enormous.
Nations Convention against Illicit Traffic in
Asia, home to two-thirds of the world’s popula-
Narcotic Drugs and Psychotropic Substances of
tion, has the second-highest HIV infection rate in
1988. Following these treaties, the Commission
the world. As of 2009, 4.7 million people in Asia
on Narcotic Drugs and the International Narcotics
were HIV infected. The high HIV infection rate
Control Board were established. According to the
is primarily drug related. The HIV infection rate
United Nations, drug trafficking is defined as a
among injecting drug users (IDUs) is as high as
global illicit trade involving the cultivation,
16%, and in some countries, such as Thailand
manufacture, distribution, and sale of substances
and Vietnam, the infection rate has reached
subject to drug prohibition laws. To advance the
30–50% and 32–58%, respectively (UNAIDS
understanding of illicit drug trafficking and
2010). The HIV/AIDS epidemic in Asia affects
consumption in the world, the General Assembly
not only the drug users themselves but also their
of the United Nations in 1998 mandated UNODC
families, communities, and many aspects of the
to publish comprehensive data about the world’s
larger society as well. According to the United
drug production, trafficking, and consumption.
Nations Human Development Programme
Starting in 1999, UNODC began to publish its
(UNDP) (2010), most of the world’s multidimen-
annual report Global Illicit Drug Trends. In 2004,
sional poor live in Asia (51% in South Asia and
UNODC merged Global Illicit Drug Trends and
15% in East Asia and the Pacific). The impact of
the World Drug Report. In its report published in
HIV/AIDS on Asian countries, in particular those
2010, the United Nations identified three major
countries in poor economic shape, has been
illicit drug markets worldwide: the heroin
particularly devastating.
market, the cocaine market, and the ATS market.5
Due to the substantial consequences of illicit
In general, different drug markets have shown
drug trafficking and drug abuse for Asian coun-
different trafficking patterns: heroin and cocaine
tries, this chapter focuses its discussions on two
trafficking is mainly involved in long-distance
central issues: illicit drug trafficking and drug
trafficking between continents while ATS and
misuse in Asia. The first part of the chapter intro-
cannabis resin trafficking is primarily limited to
duces illicit drug production in major producer
the producers’ regions (UNODC 2010a).
countries in Asia as well as current markets and
major drug trafficking routes; the second part of
the chapter shows drug consumption patterns in
8.2.1 Opiate and Heroin Market in Asia
Asia, the social consequences of drug use, and
treatment modalities provided for drug users.
According to the World Drug Report (2010),
Responses of the criminal justice system and an
global opium poppy cultivation declined to
assessment of the effectiveness of the policies
181,400 hectares (ha) in 2009, a 23% reduction
will also be addressed for both sections.
5
While cannabis production is found throughout most of
4
For instance, countries in central Asia, on the major drug Asia, it is not covered by World Drug Report 2010 because
trafficking routes from Afghanistan to the Russian cannabis is mainly consumed locally in producer coun-
Federation and Europe, have seen national security at all tries and is not subject to transnational market analysis
levels impaired (Cornell 2005). (UNODC 2010a).
8 Drug Abuse and Drug Traf ficking in Asia 117
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
ATS have gained popularity worldwide in the 9

Ephedrine seizures, reported by India since 2002
past decades. At present, the manufacture of ATS (126 kg), reached their peak in 2008 (1,284 kg) (UNODC
has spread throughout more than one-third of the 2009b); in China, it was reported that a total of 1,113 tons
countries in the world (UNODC 2010a). Asia, in of precursors were seized in 2008 (NNCC 2009).
10
particular East and Southeast Asia, has become Alternative precursors are also detected in MDMA
manufacture and substitute drugs (such as safrole-rich oils
the home of the world’s largest ATS manufacturers. from Southeast Asia), which are not under international
Unlike plant-based drugs, ATS can be made in control or regulated by Asian countries (UNODC 2010a).
small clandestine laboratories as long as the 11
DAINAP is an Internet-based drug use information
precursors are available. Unfortunately, China system which has 11 participating countries, including 10
countries from the Association of Southeast Asia Nations
and India are the world’s two largest producers of
(ASEAN) and China. Information from DAINAP was
ephedrine and pseudoephedrine—the precursor supplemented with data from government sources and
chemicals for ATS.9, 10 Due to the concealed secondary research.
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
Burmese Government also acquires a substantial

amount of money from drug lords. For this reason,
8.3 Drug Misuse in Asia
drug control in Myanmar is often politicized and
According to the Word Drug Report (2010),
pursued without much vigor (Chin 2009).
between 155 and 250 million people (3.5 to 5.7%
Meanwhile, the failure to control drug
of the world’s population aged 15–64) abused
trafficking effectively in Asia is also attributed
illicit drugs at least once in 2008. The largest
to widespread corruption among government
drug use population (129–190 million) used
officials, even top officials in major producer
cannabis.14 In 2009, opiate users were largely
areas such as Afghanistan and Central Asian
from East/Southeast Asia (2.83–5.06 million),
countries. Government officials frequently get
with users in the Near and Middle East as the
involved in criminal networks and drug traffic-
second (1.89 and 3.82 million) (UNODC 2010a).
king. It certainly weakens border control when
The ATS user population ranked second (between
corruption became so prevalent. For example, on
14 and 53 million), and they were primarily
the northern border of Afghanistan, a major drug
methamphetamine users.15, 16 It is predicted that
trafficking route to Central Asia, border security
the ATS user population will exceed that of
is largely out of the control of the central Kabul
opiate and cocaine users soon.
administration. On the side of Central Asia, a
Regardless of types of drugs abused, between
similar level of corruption exists (Walker 2005).
16 and 38 million drug users (10–15%) in 2008
In East Asia, corruption has also spread among
were “problem drug users” (UNODC 2010a).17
government officials and members of the security
forces (Dupont 1999). Controlling drug traffic-
king certainly imposes challenges to these unde-
8.3.1 Patterns of Illicit Drug Abuse
veloped states.
in Asia
In terms of a legal framework to stop drug
trafficking, Asian countries have adopted harsh
Opium has been used in Asia for several centu-
drug policies against drug-related offenses,
ries both for medical and recreational purposes,
including the death penalty. All six countries
but its popularity has diminished with the emer-
listed by the International Harm Reduction
gence of ATS.18 While heroin still ranked as the
Association as high commitment states, where
the death penalty is exercised with regularity, are
located in Asia: China, Iran, Saudi Arabia, 14
Between 12.8 and 21.8 million people (0.3–0.5% of the
Vietnam, Singapore, and Malaysia. The majority world population aged 15–64) used opiates in 2008
of executions for drug offenses are carried out by (UNDOC 2010a). In Asia, opiate users were largely
these countries (Gallahue and Lines 2010). from East/Southeast Asia (2.83–5.06 million) (UNDOC
2010a).
According to the Criminal Law of P. R. China, 15
Ecstasy users were also included in this category
drug dealing is strictly prohibited; criminal (between 10.5 and 25.8 million), but ketamine users were
responsibility for heroin dealing or trafficking is not counted (UNDOC 2010a).
determined by the quantity of drugs involved; 16
While amphetamine is preferred in Europe, about half of
the death penalty might be imposed on whoever the stimulant users in North America use methamphet-
amine (UNDOC 2009c).
sells or traffics more than 50 g of heroin, or 17
UNODC defines “problem drug users”—those who
1,000 g of opium. Regardless of harsh punish- inject drugs and/or are considered dependent, facing
ment on drug offenses, not only did the total serious social and health consequences (UNODC 2010a,
amount of illicit drugs trafficked in China tremen- p. 16).
18
dously increase in the past two decades, but a Between 12.8 and 21.8 million people (0.3–0.5% of the
wide variety of illicit drugs, such as ATS, also world population aged 15–64) used opiates in 2008
(UNDOC 2010a). In Asia, opiate users were largely
began to emerge in the underground drug market from East/Southeast Asia (2.83–5.06 million) (UNDOC
one after another. 2010a).
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).
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
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
rape, sexual exploitation, torture, beatings,

9.1 Introduction starvation, death threats, and threats to family
members. It is believed that most victims who are
Human trafficking is a form of modern-day slavery.
trafficked are isolated and remain undetected by
Traffickers often prey on individuals who are
the public because (1) the strategies used by the
poor, frequently unemployed or under-employed,
perpetrators isolate victims and prevent them
and who may lack access to social safety nets,
from coming forward, and (2) the public and the
predominantly women and children in certain
victim service providers have only recently
countries. Victims are often lured with false
become aware of this issue and may not be familiar
promises of good jobs and better lives, and then
with how to recognize or respond to trafficking
forced to work under brutal and inhuman condi-
victims. This chapter covers the forms and trends
tions. The full dimensions of the problem of
in trafficking in Asian Countries, sources and
human trafficking are difficult to measure as there
destination of trafficking, and preventive and
is no database in that particular country. We do
protective measures adopted in each country.
not know, however, that human trafficking is a
In Asia, there is a general lack of hard data on
major source of profit for organized crime syndi-
this topic. However, it is possible to glean some
cates, along with trafficking in drugs and guns.
valuable insights from studies on related activi-
The scope of the problem in the Asian Countries
ties. These studies can frequently provide an
is serious. Victims are often lured into trafficking
indication of the scale of trafficking in the region.
networks through false promises of good work-
Although not comprehensive in scope or cover-
ing conditions and high pay as domestic workers,
age, the following estimates do present convincing
factory and farm workers, nannies, waitresses,
evidence of the existence of a growing trafficking
sales clerks, or models. Trafficked victims suffer
problem in this part of the world as well. Global
extreme physical and mental abuse, including
surveys conducted by UNDOC, US Department
of States, and UNDP provide a bird’s eye view of
trafficking scenario throughout the world. The
R. Thilagaraj, Ph.D. UNAIP has compiled the Mekong Region Human
Department of Criminology, University of Madras, Country Datasheets on human trafficking for the
Chepauk Campus, Chennai, 600 005, Tamil Nadu, India Greater Mekong region which includes countries
like China, Cambodia, Vietnam, Laos, Thailand,
S. Latha, Ph.D. (*) and Myanmar. This chapter also mostly relies
School of Criminology and Criminal Justice,
upon the data provided by these agencies.
Tamil Nadu Open University,
Saidapet, Chennai, 600 015, Tamil Nadu, India There are a number of definitions given by
e-mail: [email protected] many international agencies. In this chapter, the

130 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.
Cambodian Department of Anti-Trafficking and

9.3 Trafficking Trends Juvenile Protection data for 2003–2006 suggests
a growing trend in persons arrested; 36 persons
9.3.1 Cambodia arrested in 2003, rising to 73 in 2005 and 65 in
2006. In terms of victims trafficked, the same
Cambodian men, women, and children migrate agency’s data provides a breakdown by gender in
to Thailand, Malaysia, and other countries for the period 2003–2006. In 2003, the figure was
work, and many are subsequently subjected to 674 (all women); in 2004 the figure was 633
sex trafficking or forced to labor in the Thai (of these some 54 were male); in 2005, 615
fishing and seafood processing industry, agricul- (19 men); and in 2006 the figure had dropped to
tural plantations, factories, domestic servitude, 292 (of which 9 were men).
begging, and street selling. The number of workers
who migrated to Malaysia for employment
through Cambodian recruiting companies has 9.3.2 China
increased significantly since 2008. In 2010,
licensed Cambodian labor recruitment agen- International Labor Organization found that
cies—members of the Association of Cambodian forced prostitution, the entertainment industry,
Recruiting Agencies—trained and sent 16,395 hairdressing, massage parlors, brick kilns, and
workers to Malaysia, of which 11,918 were manufacturing and forced begging are the key
females trained as domestic workers. The sectors of employment for trafficked victims in
9 Human Traf ficking in Asia 131
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
Fig. 9.1 Victims Victims of trafficking in persons identified by State authorities in

repatriated from Lao to Lao PDR who have been repatriated from Thailand (2003-2006)
Thailand (2003–2006)
300
9
3
250
19
200 babies
150 boys
250
3 221 girls
100 2
50
76 64
0
2003 2004 2005 2006
Source: Ministry of Labour and Social Welfare
Trend victims of trafficking in persons reported by State authorities

( internal, repatriated and foreigners) in Myanmar (2003-2007)
1600
1400
1200
1000
800 Series1
1370
600 1157
932 824
400 690
200
0
2003 2004 2005 2006 2007
Source: "Report on Myanmar's Efforts to Combat Trafficking in Persons"
Fig. 9.2 Victims Myanmar, 2003–2007
Destinations of victims repatriated to Myanmar (2004- 2005)
Other
Mekong, 6 2
East Asia
East Asia, 78 Other Mekong
Source: "Report on Myanmar's Efforts to Combat Trafficking in Persons"
Fig. 9.3 Victim repatriation to Myanmar, 2004–2005
involved forced labor, and 8 cases involved child 9.3.6 Thailand

trafficking (Myanmar Anti-Trafficking Unit
2010). See Figs. 9.2 and 9.3 on numbers and des- There has been an increase in the number of
tinations of repatriation. younger people migrating from neighboring
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).
Table 9.4 Number of victims of trafficking in Thailand

from other countries
9.3.8 India
Nationality of women and Cambodia 57
children trafficked China 2
In India, the National Crime Records Bureau, a
Lao PDR 195
federal organization at the capital, Delhi collects,
Myanmar 260
Vietnam 11 compiles and disseminates statistics on crime
Unidentified 5 nationwide. This statistics is published as “Crime
Total 530 in India” every year. Crime in India exclusively
Source: The Mekong Region Human Country datasheets publishes a chapter on human trafficking which
on human trafficking 2010 includes the offences registered under Indian
Penal Code (IPC). The publication “Crime in
Mekong countries as well as women from distant India, 2009” reports crime-wise statistics and
countries such as Russia and Uzbekistan that are accordingly Table 9.5 shows the trends of human
vulnerable to being trafficked into the Thailand trafficking under various laws from 2005 to
commercial sex industry. Main Employment 2009.
Sectors of Trafficked Persons are migrants who The number of cases registered under human
have been forced, coerced, or defrauded into trafficking during the year 2009 is given in
forced labor or commercial sexual exploitation. Table 9.5. While such a situation persists an
Trafficking victims within Thailand typically applaudable action research was conducted by
work in fishing, seafood processing, low-end National Human Rights Commission (2005).
garment production, and domestic work. See This is the first study on the victims of trafficking
Fig. 9.4 on investigations and Table 9.4 for or survivors conducted in India and a detailed
nationality of victims trafficked, 2010. review on the same is given below.
Some of the important facts given in the
CATW fact book are given below:
9.3.7 Vietnam • India, along with Thailand and the Philippines,
has 1.3 million children in its sex-trade
Vietnam is predominantly a source country for centers. The children come from relatively
victims of trafficking. See Fig. 9.5 for investiga- poorer areas and are trafficked to relatively
tion data 2003–2007. Vietnamese girls are richer ones (Wadhwa 1998).
trafficked into China, Taiwan, South Korea, • In cross-border trafficking, India is a sending,
and Singapore via the brokerage of fraudulent receiving, and transit nation. Receiving chil-
marriages by licensed and unlicensed migrant dren from Bangladesh and Nepal and sending
labor recruitment agencies. Vietnamese children women and children to Middle Eastern nations
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.
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
Table 9.8 Trafficking crime trends in Sri Lanka

Year Offence Cases recorded Cases pending Convictions
2004 Trafficking 16 16 0
Year Offence Cases recorded Cases pending Convictions
2004 Abduction/kidnapping 868 675 21
Source: Terre des hommes Foundation Lausanne (Tdh) and South Asian Partnership Sri Lanka (SAPSRI), 2008
9.3.11 Sri Lanka construction labor or in other factories like

garments. Trends are given in Table 9.8.
Sri Lanka is primarily a source country with men,
women, and children being trafficked primarily
for labor and also for commercial sexual exploi- 9.3.12 Pakistan
tation, including domestic child sex tourism.
There may also be a small but significant Pakistan is a source, transit, and destination coun-
trafficking of women into Sri Lanka from country for men, women, and children subjected to
tries such as Thailand, China, and the members trafficking in persons, specifically forced labor
of the former USSR for commercial sexual and prostitution. The largest human trafficking
exploitation. There are also recent concerns about problem is bonded labor, concentrated in the
trafficking for employment to the Middle East as Sindh and Punjab provinces in agriculture and
well as Singapore among other countries. Men brick making, and to a lesser extent in mining and
and women are offered jobs as domestic workers, carpet-making. The number of convictions under
Prevention and Control of Human Trafficking

Ordinance (PACHTO) was 357 in 2008, and 385
9.5 Status of Asian Countries
in 2009.
According to “Trafficking
in Persons” Report, 2011
The State Department of the United States

9.4 Source and Destination
publishes its official “Trafficking in Persons”
Countries
Report every year. This publication represents
an updated, year-on-year, global look at the
We now turn from country trends to source and
nature and the scope of trafficking in persons and
destination more generally across Asia. Table 9.9
the broad range of actions taken by each country.
specifies the source countries for persons
TIP Report, 2011, evaluates the performance
trafficked into each Asian country and key desti-
of 150 countries in terms of their compliance
nation countries for the victims of each Asian
with the minimum standards of the Trafficking
country to other countries.
Table 9.9 Source and destination across Asia

Country Source for the country Destination from the countries
China Outside China—Vietnam, Russia, Korea, Thailand, Malaysia, and some countries in Africa,
and Myanmar Europe, and America
Inside the country—Yunnan, Guizhou, and For domestic victims: Fujian, Guangdong, Shandong,
Henan provinces (The National Working and Henan
Committee 2004)
Japan China, Indonesia, the Philippines, and East Asia, Southeast Asia, Eastern Europe, Russia,
Vietnam South America, and Latin America
Laos Inside—Champasak, Saravan, Thailand, Malaysia, and China
Savannakhet provinces, and the capital, (US State Department 2006)
Vientiane (Lao Department of Social
Welfare 2009)
Myanmar Yangon Division, Mandalay Division, Thailand, Malaysia, and China (World Vision)
Northern Shan State, Kachin State, Bago
Division, Mon, Magway Division, Kayin
State, Bago (West), and Ayeyarwady
(Myanmar Central Body for Suppression
of Trafficking in Persons 2010)
Thailand Cambodia, Lao PDR, Myanmar, Russia, Australia, Bahrain, Brunei, Canada, Germany,
Southern China, Uzbekistan, and Vietnam Indonesia, Israel, Japan, Korea, Kuwait, Libya,
Inside—Ranong Province, Tak Province, Malaysia, Maldives, Qatar, Saudi Arabia, Singapore,
Kanchanaburi Province, Ubon Ratchathani South Africa, South Korea, Taiwan, Timor Leste,
Province, Mukdahan and Nong Khai the UAE, the USA, and Vietnam (Ministry of Social
Province. Srakaew Province, Surin and Development and Human Security 2010)
Trat Province
Vietnam Cambodia China, Cambodia, Lao PDR, Malaysia, Taiwan, South
Korea, Japan, Thailand, Indonesia, and the Middle East
Bangladesh India and Pakistan Saudi Arabia, Bahrain, Kuwait, the United Arab
Emirates (UAE), Qatar, Iraq, Lebanon, and Malaysia
India Nepal and Bangladesh Middle East and the United States
Nepal Bangladesh Gulf countries, Malaysia, Israel, South Korea,
Afghanistan, and Libya
Sri Lanka Kuwait, Jordan, Saudi Arabia, Qatar, Lebanon, the
United Arab Emirates (UAE), Oman, Bahrain, and
Singapore
Pakistan Afghanistan, Azerbaijan, and Iran Gulf States, Iran, Turkey, South Africa, Uganda, and
Greece
Source: Authors compilation (2012)
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).
9.6.5 Myanmar 9.6.8 Bangladesh
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
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
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
In China, only women and children can be legally

9.7 Protection and Prevention recognized as trafficking victims. Victims are
generally found through police raids or via infor-
9.7.1 Cambodia mation provided by members of the public or
shelter staff, though there are some victims who
Screening and identification of victims of self-report to police. Victim identification is
trafficking in Cambodia is undertaken with refer- carried out by police officers according to the
ence to the Law on Suppression of Human Articles 240 and 241 of the Criminal Law of the
Trafficking and Sexual Exploitation (2010). People’s Republic of China. With the support of
Some organizations, such as the IOM and Legal other ministries and NGOs, the Ministry of Public
Support for Children and Women (LSCW), use Security (MPS) and Ministry of Civil Affairs
their own tools to identify victims. State-run (MCA) provide temporary relief and return and
shelters for victims of trafficking in Cambodia reintegration assistance to victims of trafficking.
operate based on the Agreement on Guidelines China has a total of 1,372 administration and
for Practices and Cooperation between the relief shelters and over 200 Child Protection
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.
9.7.5 Myanmar Vietnam’s Immigration Department is the lead

agency, and works in cooperation with relevant
There are temporary shelters for victims of agencies including the IOM, Oxfam, AAT-
trafficking gives certain vulnerable areas in AFESIP Vietnam and immigration units from
Myanmar where the rescued victims are kept for provincial police departments, to identify and
3 days and then transferred to shelters for 2 weeks. receive victims from abroad. The Border Guard
These shelters provide counseling and guidance. Command is the primary agency for identifying
They are also given vocational training, and they and receiving self-returned victims or rescued
are reintegrated into their families. victims via land borders.
In 2009, awareness-raising efforts were con- The Vietnam Government is creating aware-
ducted both within Myanmar and abroad by the ness programs about human trafficking to the
Central Body for Suppression of Traffi cking public at a large scale through various media.
in Persons and other governmental and non- They have also identified the vulnerable areas
governmental agencies. These include the and imparted vocational programs and pro-
introduction of trafficking awareness into the vided employment opportunities. Working with
curriculum of some schools and two trafficking various Ministries and Departments within the
workshops involving 115 employment agencies. Government of Vietnam, the Vietnam Women’s
Union published brochures and books on anti-
trafficking, for distribution across the country
9.7.6 Thailand and coordinated public broadcasts.
Standard operating procedures have been devel-

oped for the return and reintegration of victims. 9.7.8 Bangladesh
They are offered medical, legal, psychosocial,
recreational and educational services, as well as The Government of Bangladesh made some
livelihood training. The Ministry of Social efforts to protect victims of trafficking over the
Development and Human Security also plays an past few years. Bangladesh’s courts and police
active role in victim identification. In 2009, 513 refer some victims of trafficking to NGO shel-
persons were discharged from shelters housing ters; other times, those victims were either
trafficking and other vulnerable victims. The self-identified or identified by an NGO. One
Royal Thai Government through various organi- hundred thirty-seven victims (83 adult women,
zations has launched several campaigns through 0 adult men, and 54 children) were self-
radio, television, print, and electronic media to identified or identified and rescued by law
raise public awareness and their cooperation in enforcement officials or NGOs. There are nine
the fight against human trafficking. homes for victims of trafficking attached with
these centers, in cooperation with NGOs, pro-
viding legal, medical, and psychiatric services.
9.7.7 Vietnam Law enforcement personnel encourage victims
of traf fi cking, when identi fi ed, to participate
In Vietnam, Ministry of Labour and Women’s in investigations and prosecutions of their
Union established centers for victims of traffickers by providing transportation to
trafficking, and these shelter programs provide courts. At least 36 Bangladeshi sex trafficking
psychological support for returned victims from victims were repatriated to Bangladesh from
the time of their arrival at the shelter up until rein- India from 2010 to 2011, although repatriation
tegration into their communities. They will remained a challenge for other victims.
engage in vocational training of their choosing or Bangladesh established a trafficking task force
attend school and receive psychological support. with India.
9.7.9 India task force with Bangladesh which held three

meetings.
The Government of India has taken initiatives to Rescue Homes are also run by many States.
prevent human trafficking particularly among Women who are rescued by the Police and those
women and children through number of measures. facing trial in the Court of law are given shelter
Significant among them are Watch Dog during the trial period. They are provided with
Committees at village level, homes for rescued free shelter, food, clothing, medical care, and also
women for rehabilitation, toll-free help lines for vocational training.
women and children and many other homes. The India made uneven progress in its efforts to
Village Level Watch Dog Committees are formed protect victims of human trafficking. Indian law
in each village. The Committee monitor group enforcement and immigration officials continued
movement of children in and out of villages, Watch to lack formal procedures for proactively identi-
out for brokers, keep a watch on the extremely fying victims of trafficking among vulnerable
poor families and mainstream children—see at populations, such as children at work sites,
least such children come to the school. females in prostitution, or members from the
A number of homes are run by the States with disadvantaged social economic strata in rural
the financial assistance given by the Ministry of industries. NGOs reported hundreds of more
Women and Children, Department of Social rescues and release certificates and issued particu-
Defence, and Ministry of Social Justice and larly in Tamil Nadu, Andhra Pradesh, Karnataka,
Empowerment. The homes are viz., short stay Uttar Pradesh, and Bihar.
homes, swadhar homes, ujjwala homes, and rescue
homes. The States also have counseling centers
for women and girls who are in moral danger or 9.7.10 Nepal
abandoned by their families. Ministry of Women
and Child Development (MWCD) funded 331 The Government of Nepal does not have a formal
Swadhar projects—which helps female victims system of proactively identifying victims of
of violence, including sex trafficking—and 134 trafficking among high-risk persons with whom
projects and 73 rehabilitation centers in 16 states they come in contact. During the last year, the
under the Ujjawala program—which seeks to Ministry of Women, Children and Social Welfare
protect and rehabilitate female trafficking (MWCSW) fulfilled a commitment reported in
victims—and 238 women’s help lines. This is an the 2010 TIP Report to open and partially fund
increase from the previous year. Foreign victims five NGO-run shelter homes for female victims
can access these shelters. Some trafficking of trafficking, domestic violence, and sexual
victims were penalized for acts committed as a assault; a total of eight NGO shelters are now
result of being trafficked. NGOs asserted that given some funding by the government. As of
some parts of Andhra Pradesh, Maharashtra, February 2011, 77 victims were in those shelters.
Goa, Bihar, Delhi, Tamil Nadu, and West Bengal During the year, the government of Nepal fulfilled
continued to make progress in not criminalizing a second commitment to open 15 emergency
sex trafficking victims. Reports indicated that shelters across the country for victims of
some foreign victims continued to be charged trafficking and other forms of abuse. All facilities
and detained under the Foreigners’ Act for that assist trafficking victims were run by NGOs
undocumented status. The Government of India and most provided a range of services, including
successfully repatriated seven Bangladeshi legal aid, medical services, psychosocial coun-
trafficking victims from Chennai in 2010 with seling, and economic rehabilitation. The Nepal
the assistance of NGOs, and repatriated 29 Police Women’s Cells reportedly sustained
Bangladeshi victims from Maharashtra in 2010– partnerships with NGOs to ensure that victims
2011, although repatriation remained a challenge were provided with available shelter; however,
for other victims. India established a trafficking it is unknown how many survivors received
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
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
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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
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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
services intercepted a call between one of the

10.1 Introduction
terrorists and one of his handlers: “Brother, you
have to fight. This is a matter of prestige of Islam,”
On November 26, 2008, ten Pakistani militants the voice urged, “You have to fight for the victory
traveled in a fishing boat from Karachi, Pakistan of Islam” (India Ministry of Foreign Affairs 2008).
southward toward Mumbai, India. Once near The terrorists then prepared for a police assault,
Mumbai, they transferred to an inflatable dingy which eventually came, resulting in their deaths.
with an outboard motor. Upon reaching shore, they The third team traveled to the landing site of
divided up into small teams, each with a specific the Oberoi-Trident Hotel, where they shot people
objective in mind. The first team headed toward indiscriminately. At one point in their assault,
the Chhatrapati train station, which was nominally they called local media outlets and demanded
guarded by the Railway Protection Force (RPF) that the Indian government release all Mujahiddin
that soon found itself outgunned. The terrorists fighters being held in Indian prisons. As with the
roamed throughout the station, shooting innocent second team, members of this team were in tele-
civilians indiscriminately. Eventually, armed phonic contact with their handlers; one handler
police units would arrive, putting pressure on the instructed a militant to concentrate on shooting
team, which then dispersed toward the Cama and the foreign hostages (including a Singaporean
Albless Hospital, where they were able to kill national) and to avoid hitting Muslims who might
more people (BBC News Timeline 2008). have been staying at the hotel.
Meanwhile the second team dashed off to Finally, the fourth team headed directly to the
Nariman House, a commercial–residential com- Leopold Café. Upon entering the restaurant, two
plex administered by the Jewish Chabad Lubavitch attackers (Abu Shoaib and Abu Umer) began
movement. The team moved into the building, shooting patrons indiscriminately; eventually
took 13 people as hostage (five of whom would eight would be killed (Agence France Presse
later be killed). At one point, Indian security 2009). They then headed to the Taj Mahal Palace
and Tower Hotel. They meandered through the
hotel, shooting people and throwing grenades as
Any views or opinions in this essay are the author’s own the opportunities presented themselves. At one
and do not necessarily reflect official positions of the US stage, an attacker was ordered by his Pakistani-
Naval War College, the US Department of Defense, or the
US Government.
based handler to set fire to the hotel. After 60 h of
terrorist violence, Indian security forces were
P.J. Smith, Ph.D. (*)
finally able to subdue the attackers (Richman
National Security Affairs, Naval War College,
Newport, RI, USA 2010). However, the terrorists managed to kill at
e-mail: [email protected] least 195 people during a 3-day period.

148 P.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
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
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
religious group Aum Shinrikyo emerged as credible relationship to terrorism, particularly

a significant threat and conducted a major chemi- given past ties to Osama bin Laden and the Al
cal attack on Tokyo’s subway system in 1995, Qaeda organization (Mackerras 2007).
which killed approximately 12 people and injured China attributes a number of domestic plots to
more than 5,000. these organizations or to the general movement
Nevertheless, today, most terrorism seems to underpinning them. One of these plots occurred
be concentrated in, of all places, the People’s on March 7, 2008 when a China Southern Airlines
Republic of China. The U.N. 1267 Committee jet took off from Urumqi (capital of the north-
officially lists the East Turkistan Islamic west Xinjiang Uighur Autonomous Region) and
Movement (ETIM), which has been described as flew toward Beijing. After 2 h into the flight, the
a terrorist organization by the Chinese plane made an emergency landing in Lanzhou,
Government (although many reports suggest that capital of neighboring Gansu Province.
ETIM’s level of threat and operational capacity Authorities later reported that they had captured a
have significantly declined). China’s terrorism 19-year-old female ethnic Uighur (and an appar-
concerns center around the Xinjiang Uighur ent accomplice), whom they accused of attempt-
Autonomous Region (XUAR), which is home to ing to set fire to the airplane while in flight. The
roughly eight million non-Han Uighurs and other Chinese government later characterized the act as
minorities. “organized and premeditated” (Xinhua 2008).
Beijing characterizes unrest in Xinjiang as Other plots were uncovered, particularly around
being a manifestation of the “three evils,” namely the time of the 2008 Olympic Games (Straits
terrorism (恐怖主义), separatism (分裂主义) Times 2008). In April 2008, Chinese officials
and extremism (极端主义) (Dreyer 2005). In announced that they had broken up a terrorism
January 2002, the Chinese Government issued a conspiracy involving 35 members of the East
report titled “East Turkistan Terrorist Forces Turkestan Islamic Movement (ETIM). A Chinese
Cannot Get Away with Impunity” (Xinhua 2002). official reported that the group “had plotted to
The report asserted that since the 1990s, “the kidnap foreign journalists, tourists and athletes
‘East Turkistan’ forces inside and outside Chinese during the Beijing Olympics” (Johnson 2008).
territory have planned and organized a series of In July 2009, China witnessed a major out-
violent incidents in the Xinjiang Uygur [Uighur] burst of ethnic unrest in Xinjiang. The riots, first
Autonomous Region of China and some other led by ethnic Uighurs, were then followed by
countries” (Xinhua 2002). The report further revenge attacks by ethnic Han Chinese. Overall,
alleged that from 1990 to 2001, East Turkistan more than 190 people were killed and more than
terrorists (both within China and abroad) were 1,600 were arrested. The chaos prompted China’s
linked to over 200 terrorist incidents in Xinjiang President, Hu Jintao, to abruptly return home
“resulting in the deaths of 162 people of all eth- from the G8 Summit, being held in Italy. Since
nic groups, including grass-roots officials and that time, Beijing has significantly increased law
religious personnel, and injuries to more than 440 enforcement presence in the Xinjiang region and
people” (Xinhua 2002). has, periodically, uncovered plots and conspira-
Subsequently, China officially listed four cies which Chinese officials allege are indicative
groups that it deemed instigators of terror. They of a persistent challenge of terrorism.
included the East Turkestan Islamic Movement,
or ETIM (东突厥斯坦伊斯兰运动), the East
Turkestan Liberation Organization, or ETLO (东 10.3 Asia’s Ideological Enabling
突厥斯坦解放组织), the World Uighur Youth Environment
Congress, or WUYC (世界维吾尔青年代表大会),
and the East Turkestan Information Center, or The global shift of terrorism to Asia is driven by
ETIC (东突厥斯坦新闻信息中心). Of the four a number of ideological, functional, and criminal
groups, ETIM seems to have had the most enabling factors. Perhaps the most powerful of
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-
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
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).
More significantly, as Afghanistan’s drug longstanding local conflicts (e.g., Afghanistan,

culture has spread throughout the region, it has Kashmir, Mindanao) provide their own enabling
provided opportunities for terrorist organiza- energy, stimulating a variety of groups and justi-
tions in neighboring states. The IMU, for fying—at least in their own minds—a variety of
instance, was able to control the drug trade plots and violent actions.
from Afghanistan to Central Asia in the late As terrorism is a constantly evolving phenome-
1990s via its linkages with the Taliban, Al non, it cannot be addressed through simplistic, all-
Qaeda and corrupt officials in the region purpose solutions. Ethnic-based terrorist ideologies
(Cornell 2006). More recently, Russian and and activities must be distinguished from religious
Kyrgyz officials have expressed concerns about or anarchist-based terrorism. Also critical is the
a growing narcotics–militancy nexus. Drug sei- importance of understanding terrorism in the con-
zures in Kyrgyzstan have increased dramati- text of insurgencies and avoiding confusion by
cally; in 2008, officials there seized 8.2 tons of treating the two activities as a single phenomenon.
narcotics, compared to 5.0 tons in 2007 (IHS As this chapter has demonstrated, terrorism
Jane’s 2009). thrives in Asia due to a variety of ideological,
In some cases, terrorist groups will funnel ill- functional, and criminal enabling factors. As a
gotten cash into legitimate businesses. In the result, effective counterterrorism strategies in the
early 2000s, Lashkar-e-Taiba began to invest its region must address all of these factors if they are
assets (both derived from gifts as well as criminal to be successful. While terrorism in this region
activities) in an array of legitimate businesses, may never be totally eradicated, it can be man-
including “commodity trading, real estate, and aged with multilateral approaches and enlight-
production of consumer goods” (Jablonski and ened government actions, some of which are
Dutton 2004). Similarly, JI has plowed some of already in place. However, the first step is to
its cash into businesses that could earn even understand the challenge, viewing it from all of
greater wealth. Indonesian intelligence officials its dimensions.
acknowledged the fact that JI had businesses sell-
ing an array of goods: magazines, VCDs, fertil-
izer, bread, and coffee (Lopez 2007).
Although terrorists tend to engage in crime for
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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
1863 Cambodia was established as a French

11.1 History and Politics
Protectorate, which lasted until independence in
November 1953.
Cambodia is a small South East Asian nation bor- In 1954 Cambodia became a constitutional
dered by Laos in the north, Vietnam in the east, monarchy led alternatively as King or Prime
Thailand in the west, and the Gulf of Thailand in Minister by Prince Norodom Sihanouk. In the
the south. During the last 30 years of the twenti- 1960s Cambodia was gradually enmeshed in
eth century Cambodians have suffered civil war, the complex politics of the cold war and one of
foreign aggression, and genocide. At peace since its “hot” manifestations, the civil war in neigh-
1998, its growing and youthful population (60% bouring Vietnam. In 1970 Sihanouk was ousted
are under 25 and 40% are <15 years old) of 13.4 by a coup led by General Lon Nol. Cambodia
million face problems of development and is one was declared a republic and entered a period of
of the poorest countries in the world, ranking civil war, which was rendered even more
137th out of 182 countries in 2009 (UNDP 2009, destructive by the heavy and illegal US bomb-
p. 145). Most Cambodians (84.3%) reside in rural ing targeting Vietcong supply routes inside the
areas, many subsisting with less than $1USD a country. This conflict boosted the popularity
day. Close to 60% of the remaining 15.7% urban and power base of groups opposed to the Lon
dwellers reside in the capital Phnom Penh Nol regime, among whom the dominant groups
(National Institute of Statistics 2008). The popu- were royalists and a revolutionary movement
lation is 95% Buddhists and Ethnic Khmers. For known as the Khmer Rouges led by Pol Pot. In
centuries the Khmers were ruled by revered God 1975 the Khmer Rouges (KR) defeated the
Kings and most famously during the cultural bril- republican army and entered Phnom Penh. Once
liance of the Angkorian period between the 9th in power, the KR emptied the cities, and estab-
and 13th centuries. Cambodia suffered recurring lished a Chinese-backed utopian regime of
territorial and political conflicts with its agrarian revolutionary terror, which killed
Vietnamese and Thai neighbours, until the mod- (through starvation and murder) 1.7 million
ern period when Cambodia was incorporated by people and ended in 1979 with a military occu-
French imperial expansion in Indo-China. In pation by the Vietnamese. The Vietnamese army
of occupation installed a socialist regime called
the People’s Republic of Kampuchea (PRK) led
successively and briefly by a number of former
R. Broadhurst, Ph.D. (*) • T. Bouhours, Ph.D. • C. Keo, Ph.D.
KR defectors, and six years later by Hun Sen
School of Regulation, Justice and Diplomacy in the ANU
College of Asia and the Pacific, Canberra, Australia the current long-serving Prime Minister, him-
e-mail: [email protected] self a former KR defector. In 1989, when

168 R. Broadhurst et al.
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
methamphetamines) is rising and that “… the

11.3 Crime Statistics
demand for illegal drugs among youth, students,
and other citizens has remarkably increased”. The
report mentions that in 2006 the quantity of heroin Trends in violent crimes have followed the typical
and methamphetamines (ice) trafficked to post-conflict pattern theorised and empirically
Cambodia was three times higher than that in tested by Archer and Gartner (1976) where homi-
2005. In his January 2007 report, the National cide rates temporarily increase at the end of armed
Police Commissioner commented that Cambodia conflicts and subsequently decline. Table 11.1
had been used as a safe haven for the transit and presents an overview of the number of crimes
distribution of illegal drugs from the Golden recorded by the police between 1998 and 2009.
Triangle to other countries in the regions (NPC For 2009 the rates per 100,000 per crime catego-
2008). ries were the following:
Table 11.1 Crime trends recorded by judicial police 1998–2009

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Number of recorded crime events
Murder 793 581 571 407 425 509 511 448 400 393 333 331
Armed 1,822 1,396 1,252 1296a 1419a 1,175 1,320 868 657 572 466 428
robbery
Grenade 68 42 39 21 10 23 33 20 17 14 13 11
attack
Rape 130 165 209 218a 279a 331 281 254 250 238 198 241
Kidnapb 130 91 63 51 38 25 7 10 1 10 0 1
Poisonsb 0 20 31 n/a n/a 6 n/a n/a n/a n/a n/a n/a
Patrimonyc n/a 2 4 n/a n/a n/a n/a 3 n/a n/a n/a n/a
Theft 1,871 1,789 1,827 1,854 1,846 1,741 1,503 1,458 1,451 1,183 787 1,097
Assault/ 1,114 1,058 1,130 1,131 1,141 1,301 1,024 1,010 1,218 1,017 830 978
disputesd
Fraud/ 244 246 218 116f 202f 160f 113f 104f 115f 77f 60f 84f
pickpockete
Illegal n/a n/a 96 67 76 64 43 43 55 50 40 46
weapon
Other 905 639 387g 381g 309g 358g 161 256g 292g 187g 154g 239g
offences
All crime 7,077 6,029 5,827 5,542 5,745 5,693 4,996 4,474 4,456 3,732 2,881 3,456
Rate per 61.9 51.7 49.0 45.7 46.5 45.2 39.0 34.5 34.0 28.2 21.5 25.4
100,000
Population 11.4 11.7 11.9 12.1 12.4 12.6 12.8 13.0 13.1 13.2 13.4 13.6
(mil.)h
Sources: 1998–2007 annual returns MoI Judicial Police Centre
Notes: n/a = not available
a
Also counts robbery and rape murder
b
Poisoning and kidnapping are presumed non-fatal
c
Theft of cultural heritage
d
Records only injurious assaults
e
Offences combined in original source
f
Pickpocketing counted in theft from 2001
g
Attempt killing is included: 2000 = 51, 2001 = 153, 2002 = 102, 2003 = 87, 2005 = 69, 2006 = 126, 2007 = 100, 2008 = 75,
2009 = 105
h
Population estimates; 1998: General Census; 2004: Cambodia Inter-Censal Population Survey; 2008: General Census;
all other years are derived estimates
Fig. 11.1 Homicide events 1992–2009 (rates per 100,000 population)
Robbery: 3.15 consequences for both the victim(s) (i.e. serious

Robbery-murder: 0.36 impoverishment) and the offender(s) (i.e. high
Murder: 2.03 risk of being killed by villagers if caught in the
Attempted murder: 0.77 act). Given that more than 80% of the Cambodian
Rape: 1.77 population make a meagre living through farm-
Rape-murder: 0.04 ing activities, this crime affects a large number
Grenade attack (considered lethal): 0.08 of citizens.
Homicide (murder, grenade attacks, robbery- Figure 11.1 presents the trends of homicide
murder, and rape-murder): 2.52 rates based on police records from 1992 to 2009.
Assault with injury: 7.19 It should be noted that these rates are based on
Theft (ordinary theft from the person, of vehi- homicide events, not homicide victims, and are
cles, and of livestock, and burglary): 8.07 therefore lower than the rates that would be cal-
Fraud: 0.62 culated on the number of victims, which was not
Other offences: 1.34 reliably provided by the police until 2008 (in
While the rates of robbery, including rob- 2008, 333 and in 2009, 331 homicide events
bery-murder, have declined since 1992, the resulted, respectively, in 347 and 353 deaths). We
number of robbery-murders is still relatively also regard the rates of homicide events before
high. In rural Cambodia livestock theft is the 1998, particularly for 1997, which coincided with
most prevalent crime and can have dramatic a coup d’etat, as unreliable police records.
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
As mentioned earlier, the UNICVS shows that

11.4 Corruption livestock theft is the most prevalent crime in rural
areas. In 2001, in two of the surveyed rural prov-
Corruption is endemic in Cambodia and affects inces, Kampong Chhnang and Kampong Speu,
many government institutions, non-government the 1-year prevalence rates of livestock theft were
institutions, and businesses. There have been sub- close to 35% and reached 25% in Kampong
stantial allegations that corruption within the Cham. In 2006, the rate had declined to 11% in
Judiciary System is rampant (Linton 2006, p. 335). Kampong Cham, but was still one of the highest
However, street-level corruption by officials has rates apart from fraud and corruption (Kampong
abated since 2000. For instance, two sweeps of Chhnang and Kampong Speu were not surveyed
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
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
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.
11.9.2 Rights of the Accused appointment of a lawyer shall be made by the

presiding judge (other provisions mention the
Although the principle of presumption of investigating judge rather than the presiding
innocence is enshrined in the Cambodian con- judge) in the following cases:
stitution, the way the inquisitorial system is • The victim is a minor without defence.
practiced in Cambodia mostly insures that a • The accused person is a minor without defence.
person is presumed guilty by the time he/she • The accused person is mute, deaf, blind, or has
appears before the court. Guilt or innocence a mental disorder.
tends to be determined during a pre-trial stage, • The accused person is not able to afford a
which takes place before prosecutors whose defender.
enquiries are not open to the public. The Law Funded by the US donors, the Cambodian
on Criminal Procedure does specify a number Defenders Project (CDP) was set up in the mid
of basic rights for the accused, such as the right 1990s to train a group of defenders whose role
to be informed of the imputed criminal act, the was to represent those accused of crimes in the
right to answer or not to answer the investigat- court. They formed themselves into an organisa-
ing judge without the assistance of a lawyer or tion that now provides legal aid from offices in
a defender chosen by the accused, the right to Phnom Penh and a number of provincial towns. In
communicate privately with defenders, and the 2001 it comprised 30 lawyers, 30 supporting staff,
right to appeal a court decision. However, there and 17 law interns. According to CCJAP (AusAID
is no provision for the right to remain silent 2001), defenders were sometimes regarded with
and to have an attorney present during police suspicion by judges, prosecutors, and court clerks
interrogations. There is no trial by jury in and even forbidden to appear; however, as trained
Cambodia, or a right to plead guilty to a lesser lawyers they raised the standard of court proce-
offence. As for a speedy trial, it is not a right dures. Yet, CCJAP (AusAID 2001) reported that
provided to the accused but a provision of the despite being paid decent salaries, “some of them
Law on Criminal Procedure allowing the pros- have succumbed to the pervading corruption
ecutor to send an accused direct to trial (i.e. found in the court system”. Legal Aid of Cambodia
without relying on the work of the investigat- (LAC) was set up shortly after the establishment
ing judge) when the offence is a misdemeanour of the CDP as the latter split into two distinct
incurring a penalty of no more than a year groups. Funded by several European assistance
imprisonment, or a misdemeanour incurring projects, in 2001 LAC had offices in Phnom Penh
more than a year imprisonment in the case of and nine provinces and was staffed by 18 lawyers
“flagrante delicto” (i.e. when the accused was and 18 legal assistants.
caught red-handed in the act). Whilst article 21 In addition to the CDP and LAC, in 1995 a
(1) of the UNTAC code stipulates that children statute established the Cambodian Bar
under the age of 13 must not be placed in deten- Association and stipulated that only members of
tion, there is no age of criminal responsibility the association could practice law in Cambodia.
in Cambodia. The association, which in 2000 had 216 mem-
Because the CJS and the legal profession bers, includes lawyers in private practice and
were decimated during the Khmer Rouges dicta- those in the legal aid/defender bodies. Although
torship there is a scarcity of trained and compe- generally not offering legal services, a number
tent lawyers in Cambodia. In theory, and of NGOs specialised in justice issues (e.g.
according to the Law on Criminal Procedure, Cambodian League for The Promotion and
from the moment s/he is charged with an offence, Defense of Human Rights [aka LICADHO],
an accused person has the right to be assisted by Cambodian Human Rights And Development
a lawyer or a “defender” at every stage of the Association [aka ADHOC], Cambodian Law
legal procedure. Article 76 of the Law on and Democracy Project, Cambodian Legal
Criminal Procedure stipulates that the automatic Resources Development Center, Cambodian
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.
11.9.4 Alternatives and Outcomes

11.9.3 Prosecution and Case of Prosecution
Investigation
Due to customary traditions and a profound dis-
Because of the legacy of the French protectorate, trust of the corrupt and costly official judicial
particularly in relation to the inquisitorial nature of system, most victims do not report crimes to the
the criminal justice procedure, there are a number police but to village and communes chiefs.
of similarities between the prosecution of criminal However, village and commune chiefs only play
cases in France and Cambodia. A notable similar- an informal role in conflict mediation geared
ity is the extensive role of the “juge d’instruction” towards reparation and compensation rather than
(investigating judge). Two distinct, yet closely col- a formal prosecuting or investigating function.
laborating, groups therefore conduct the prosecu- Apart from this informal system, which appears
tion and investigation of a criminal case: to process and “solve” many cases, there are no
prosecutors and investigating judges. Each prov- formal alternatives to going to trial, and the official
ince has a public prosecutor department whose system does not include provisions such as plea-
role is to supervise the case brought by the judicial bargaining or any kind of medical or other types
police. In principle, the usual route for the prose- of supervised or unsupervised treatment.
cution, investigation, and adjudication of a crimi- The majority of criminal cases, apart from the
nal case starts with the judiciary police. The latter most serious ones, are therefore “resolved”
receive denunciations or complaints relating to through the informal system. Serious cases go to
crimes, misdemeanours, and minor offences, trial, in principle following the procedure men-
gather evidence, may decide on the detention of tioned above (in practice, due to lack of proper
suspects for a maximum of 48 h, and then make training and corruption, many aspects of this pro-
reports to the prosecutor of the competent jurisdic- cedure are not observed). There is no trial by jury;
tion. Then the duty of the prosecutor is to immedi- after hearing the prosecution and the defence, the
ately open a judicial inquiry, that is, to make a presiding judge (or trial judge) decides on guilt or
charge called “introductory requisition”, which innocence and, if the accused is judged guilty,
indicates the offence in accordance with the law, decides the penalty to be imposed.
and, unless it is a flagrante delicto offence (in that Incarceration before or awaiting trial is allowed
case prosecutors can proceed with the investiga- and regulated by the UNTAC Criminal Code.
tion by themselves), send it to the investigating Article 14 (4) stipulates that time held in detention
judge. According to Article 38 of the Law on without trial should be no more than four months,
Criminal Procedure, there is at least one judge which can be extended to 6 months by a judge with
responsible for investigating criminal cases in each appropriate reasons given. Article 21 (1) specifies
provincial court. Investigating judges are given that accused persons must be tried no later than
extensive powers in order to conduct their inquiry. 6 months after arrest and that children under the
They may reach different conclusions as to the age of 13 must not be placed in detention, and for
charge laid by the prosecutor and must therefore children between the ages of 13 and 18 no more
maintain a close communication with the latter. than one month, which can be doubled if the child
When both the investigating judge and the prose- is charged with felony. However, CCJAP (AusAID
cutor are satisfied that there is a case to answer, the 2001) reported that very often the courts do not
prosecutor refers the case to the competent provin- comply with these rules and that many accused
cial or municipal “criminal tribunal”. In principle persons were kept in detention before trial for lon-
there is an absolute incompatibility of office ger periods than required by law.
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.
11.10.1.4 Drug Trafficking

11.10 Punishment According to Article 98, personal consumption,
and production for the unique purpose of per-
Officially, degrading treatments such as corporal sonal consumption, of any of the prohibited
and public punishment are not allowed in drugs is punished by a fine ranging from US$25
Cambodia. Fines and prison are the most com- to US$250. Article 36 stipulates that the offence
mon types of punishments imposed by the courts. of selling or providing any of these drugs to a
According to CCJAP (AusAID 2007a, b), there is person for his/her personal consumption “shall
a lack of alternatives to imprisonment. Non- be punished to imprisonment from 1 month to
custodial sentences are limited to fines, suspended 1 year and with a fine from 1,000,000 (about
sentences, and conditional release. There are no US$ 250) to 5,000,000 Riels (about US$ 1,250)
legal provisions for community work orders, or one of the two penalties”. Article 86 provides
supervised probation, and parole systems a more severe penalty of one year to five years in
(APCCA 2007). The courts can also impose rep- prison and with a fine of about US$2,470 if the
arations and compensation, but their greatest use drugs are made available to minors. Any other
probably occurs in the informal system. drug offences for the eventual intentional pur-
pose of trafficking incur a penalty from five to
twenty years imprisonment with fines up to
11.10.1 Punishment for Serious Crime 50,000,000 Riels (about US$12,500). Long
prison terms and heavy fines are therefore pre-
11.10.1.1 Murder scribed by the criminal code and it seems that
Capital punishment has been abolished in these long prison sentences are indeed often
Cambodia since 1989 and no legal executions inflicted. Travel advisories of various foreign
have taken place since then. Nevertheless, the governments warn travellers of the severe prison
law imposes heavy penalties of imprisonment for sentences for drug trafficking.
Prisons’ headquarters is located in the MoI in

11.11 Prisons
Phnom Penh. Two of the national prisons, CCI and
CCII, are situated 12 km (7.5 miles) from Phnom
Table 11.2 presents the trends in prison popula- Penh, and CCIII near the Vietnamese border. Most
tion between 1995 and 2008. During the last Cambodian prisons are overcrowded. In its survey
14 years the estimated rates of imprisonment of 18 prisons, LICADHO (2007) reported a hous-
have escalated significantly from 24.2 to 83.6 per ing capacity for 6,410 prisoners, but in 2004 these
100,000. The estimated proportions of female prisons in average operated at 123% and in 2006 at
prisoners have ranged between 4.7% in 1995 and 138% of their capacity. In CCI, which is consid-
6.4% in 2006 of the prison population (about ered to be one of the better prisons compared to
5.6% in 2008). As reported earlier, between 1999 provincial facilities, between 22 and 25 men may
and 2008, the proportions of incarcerated juve- share a cell that is about 64 square metres (688.90
niles have risen from 3.3% to 6.3% of the prison square feet). Since 1999, CCII houses only female
population. The number of institutional staff and juvenile prisoners. In 2006, 256 females and
which was 1,122 in 1995 has only increased to 285 juveniles as well as 14 babies and infants liv-
1,661 in 2008. The ratio staff/inmate has there- ing with their mothers in prison were incarcerated
fore declined from 1/2.2 to 1/6.7. at CCII (operating at 155% of its capacity). CCII is
In 2008, 26 prisons (3 national and 23 provin- the only facility of this sort in Cambodia. All the
cial/municipal prisons) operated in Cambodia, other prisons, apart from the all-adult male CCI,
with a capacity ranging from 100 to over 1,200 house both male and female prisoners in more or
detainees (LICADHO 2009). The Department of less well-separated quarters.
Table 11.2 Prison population and institutional staff, 1995–2008
Total adult Femalea Malea Adult in remanda Juveniles, Total institutional

Year populationa N % N % N % Nb staff, Na
1995 2,490 117 4.7 2,373 95.3 969 38.9 n/a 1,122
1996 2,826 141 5.0 2,685 95.0 971 34.4 n/a 1,122
1997 2,909 160 5.5 2,749 94.5 975 33.5 n/a 1,051
1998 3,233 203 6.3 3,030 93.7 1,170 36.2 n/a n/a
1999 3,832 219 5.7 3,613 94.3 1,380 36.0 128 1,105
2000 5,502 288 5.2 5,214 94.8 1,967 35.8 205 1,124
2001 6,179 293 4.7 5,886 95.3 1,910 30.9 223 1,431
2002 6,128 322 5.3 5,806 94.7 2,124 34.7 273 1,700
2003 6,346 320 5.0 6,026 95.0 1,933 30.5 292 1,350
2004 6,778 348 5.1 6,430 94.9 2,124 31.3 328 n/a
2005 8,160 500 6.1 7,660 93.9 2,434 29.8 447 1,689
2006 8,383c 536c 6.4c 7,847c 93.6c 2,561d 30.5 452 n/a
2007 10,337 577 5.6 9,760 94.4 3,741 36.2 622 1,561
2008 11,207 633 5.6 10,574 94.4 3,043 27.2 703 1,661
a
Adult prison populations and institutional staff obtained from the annual reports of the Asian and Pacific Conference
of Correctional Administrators (APCCA) available at www.apcca.org/publications.html. These data are the closest to
official statistics because the Cambodian Director of Prisons Department, MOI, usually attends the conference and
provides prison statistics
b
Includes detainees under 18 years in 18 prisons monitored by the Cambodian League for the Promotion and Defense
of Human Rights (LICADHO) (LICADHO 2007, 2009)
c
Cambodia did not attend the APCCA in 2006. These figures are from 18 prisons monitored by LICADHO (2007)
d
This figure is for 18 prisons monitored by LICADHO (2010)
In addition to overcrowding, health problems not provide information on prison deaths to

are frequent in Cambodian prisons. The Prisons LICADHO).
Department is allocated only 1,500 riels (USD The prison employs an administrative system
0.38) per prisoner per day to cover the cost of not that centralises all decisions in the hand of the
only feeding the prisoners but also transportation, wardens. Officially, family visits are on every
sanitation, cooking fuel, water, electricity, and Saturday and public holidays from 7:30 am to
administration. According to LICADHO (2007), 10:30 am and 2:00 pm to 4:00 pm. While Prison
the daily nutritional requirements stipulated in Procedure (No 8, Article 4.1 [n]) “… expressly
article 4.1 of Prison Procedure would cost, even forbids the collection of goods or money from
using the lowest quality ingredients, at least 1,700 visitors by any prison official for the privilege of
Riels in the Phnom Penh Market. Because of visiting a prisoner” and stipulates that “all pris-
widespread corruption in the prison system, oners have the right to receive visits from fami-
inmates with enough money can purchase nutri- lies or friends for at least one hour each week at
tious meals while many others are malnourished times designated in the prison rules by the prison
and suffer from poor health. The number of chief”, in CCI the no-fee rule seems to be
deaths in the prisons monitored by LICADHO respected only during official family visit days.
(2007) varied from 43 in 2002 to 100 in 2005, Thanks to corruption it is possible to visit prison-
that is, between 0.7 and 1.2% of the prison popu- ers any day but visitors have to pay a fee of at
lation. Since 2005, deaths in custody have least 5,000R ($USD1.25). The places where the
declined from 69 in 2006, 57 in 2007, to 39 in visits occur and the privileges accorded during
2008 (from 0.76 to 0.37% of the prison popula- the visits also depend on the amount of bribes
tion). The highest rates of death in custody visitors are willing or can afford to pay. No pay-
occurred in provincial facilities. Prison escapes ment is required if the visit happens via a phone
are common. In its survey, LICADHO (2007) in a room where visitors and prisoners are sepa-
reported 72 escapees in 2005 and 53 in 2006 rated by glass and iron bars. In another room,
(respectively, 0.87 and 0.60% of the population where they are only separated by iron bars and
of the 18 surveyed prisons). Most of them can touch each other, a payment of between
involved group escapes. In 2005 and 2006, 10,000R ($USD2.5) and 40,000R ($USD10) is
respectively, 25 and 23% of these escapees were necessary.1 A “gold-class” visit area, away from
killed during their attempts, and only 31 and 45% the inner core of the prison where cells are
were recaptured (i.e. 44% in 2005 and 32% in located, allows visitors and prisoners to sit
2006 were successful escapes). together on a concrete lounge, but for this privi-
Correction Center I (CCI) is a new prison, one lege visitors have to pay a minimum of $USD10.
of the only three prisons under the direct man- Unlike many other Cambodian prisons, and
agement of the General Department of Prisons, despite a level of overcrowding that often results
and the largest correctional facility in Cambodia in more than 20 inmates having to share a 64
with a capacity for 1,500 prisoners. Built on square meters cell, CCI only allows prisoners to
10 ha CC1 houses only adult male prisoners. Like go out of their cells for a short period of time
most Cambodian prisons, CCI is overcrowded once a week or fortnight. However, prisoners
and in 2006, with 2,132 inmates, it operated at who can bribe officials are allowed to leave their
142% of its maximum capacity and employed cells everyday for a long period of time to do
more than 150 staff (LICADHO 2007). Although work around the interior compound.
security in CCI is exceptionally tight, in June In 2001, CCJAP (AusAID 2001) mentioned
2006 a group of 12 prisoners managed to escape plans to assist in the development of vocational
and only one of them was recaptured. The num-
ber of deaths in custody was 17 in 2002, 13 in 1
Many Cambodian workers such as constructions work-
2003, 22 in 2004 (1.4% of CCI population), 18 in ers, school teachers, and police officers earn less than
2005, 11 in 2007, and 6 in 2008 (in 2006, CCI did USD2 a day.
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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Crime and Criminal Justice in Hong
Kong 12
Yuet Wah Cheung and Nicole W.T. Cheung
colonial rule by the British, Hong Kong’s social

12.1 Introduction and political institutions are very different from
those in mainland China. Whether China would
This chapter is a brief introduction of crime and keep its promise that Hong Kong would remain
criminal justice in Hong Kong. Since the 1960s, unchanged in all aspects for 50 years was any-
Hong Kong has experienced fast economic one’s guess. Now that 15 years have passed since
growth and modernization, earning the interna- the return of sovereignty, many people are still
tional acclaim of “the Pearl of the East.” The debating whether Hong Kong has been able to
availability of both cheap labour and industrial enjoy a truly free hand in managing its own
entrepreneurs, who mostly migrated from main- affairs, or has been subject to China’s covert or
land China to Hong Kong before the Communist overt control.
takeover in 1949, had brought about the success Against this background, an interesting social
of Hong Kong as an export processing zone in the issue to examine is crime and criminal justice in
1960s and 1970s. As China began its economic Hong Kong. Developed on the basis of the com-
reform in the 1980s, many of the manufacturing mon law of the British, the criminal justice sys-
industries in Hong Kong were attracted to move tem in Hong Kong is perhaps one of the best
to the mainland, where labour cost and the infra- indicators of the degree of autonomy that Hong
structure of production were a lot cheaper. There Kong can exercise in the post-1997 period. In this
was the need for Hong Kong’s economy to trans- paper, we give an overview of the criminal justice
form itself by developing its finance and service system in Hong Kong established since colonial
sectors. Since the 1980s, Hong Kong has estab- administration, and briefly discuss the challenges
lished itself to be one of the most important in the post-1997 period.
financial centres in the world. Equally important in the discussion of crime
The world has been watching not only Hong and criminal justice in a society is the issue of
Kong’s economic success. How its political land- measurement of crime. Since crimes feed them-
scape might change after the handover on July 1, selves to the criminal justice system, the amount
1997, had started to become an international and characteristics of crime affect the work of the
focus back in the 1980s. After over a century of system. Thus, in this paper, we first discuss how
crime information is collected by the major com-
ponents of the criminal justice system in Hong
Y.W. Cheung, Ph.D. (*) • N.W.T. Cheung, Ph.D. Kong. Crime statistics of criminal justice depart-
Department of Sociology, The Chinese University
ments are official crime data. We also describe
of Hong Kong, Shatin, N.T., Hong Kong, China
e-mail: [email protected]; some of the unofficial sources of crime data, as
[email protected] unofficial statistics are complementary to official

184 Y.W. Cheung and N.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
Table 12.1 Classification of crimes in police statistics Table 12.1 (continued)

Category Items Offences against lawful Misleading/giving false
Violent crime against Rape authority information to police
person Indecent assault Perjury
Murder and manslaughter Resisting arrest
Attempted murder Escape and rescue
Wounding Other offences against lawful
authority
Serious assault
Serious immigration Aiding and abetting of illegal
Assault on police
offences immigrants
Kidnapping and child stealing
Using identity card relating to
Cruelty to child another
Criminal intimidation Other serious immigration
Violent crime against Robbery with firearms/ offences
property arms Miscellaneous crimes Criminal damage
Robbery with pistol-like Other offences against person
object
Disorder/fighting in public
Other robberies place
Aggravated burglary Offences against public order
Burglary and theft Burglary with breaking Unlawful society offences
Burglary without breaking Money lending
Theft (snatching) Serious gambling offences
Theft (pickpocketing) Conspiracy
Theft (shoplifting) Object dropped from height
Theft from vehicle Other crime
Taking conveyance without Preventive crime Possession of arms and
authority ammunition
Abstracting of electricity Possession of offensive
Other miscellaneous weapon
thefts Going equipped for stealing
Handling stolen goods Possession of unlawful
Fraud and forgery Deception instrument
Business fraud Tampering with vehicle
Forgery and coinage Unlawful pawning offences
Sexual offences Unlawful sexual Loitering
intercourse
Keeping vice establishments
sex, age, district, and other socio-demographic
Procuration, abduction
of female groups. The corresponding detection rates of the
Unnatural offences crimes are also indicated.
Other offences against public One of the benefits of annual statistics is the
morality availability of trend data for overall and specific
Serious narcotics Manufacturing of dangerous crimes over a period of time. Table 12.2 gives an
offences drugs example of the changes in the number of violent
Trafficking in dangerous offences as compared to the total number of
drugs
crimes in the past 25 years (1986–2010). When
Possession of dangerous drugs
Other serious narcotics
the total population is taken into account, the
offences crime rate (number of offences per 100,000 pop-
(continued) ulation) for violent crime and that for total num-
ber of crimes can be calculated.
Table 12.2 Numbers and rates of reported violent crimes

Violent crime rate
(no. of violent Total crime rate
Violent crime offences per (total no. of offences
Violent crime against Total violent 100,000 Total no. of per 100,000
Year against person property crime population) crime population)
1986 7,879 6,424 14,303 243 81,411 1,384
1987 8,903 6,566 15,469 276 81,928 1,477
1988 8,893 6,831 15,724 274 79,184 1,380
1989 9,629 7,721 17,350 303 81,808 1,428
1990 9,405 9,415 18,820 321 88,300 1,507
1991 9,144 10,414 19,558 336 88,659 1,523
1992 8,741 9,826 18,567 318 84,056 1,446
1993 8,929 8,525 17,454 294 82,564 1,395
1994 9,462 7,770 17,232 284 87,804 1,449
1995 10,177 6,910 17,087 276 91,886 1,484
1996 9,950 5,241 15,191 241 79,050 1,253
1997 9,656 4,093 13,749 211 67,367 1,036
1998 10,183 4,499 14,682 220 71,962 1,076
1999 10,743 4,962 15,705 230 76,771 1,122
2000 10,045 4,767 14,812 218 77,245 1,137
2001 9,149 4,402 13,551 202 73,008 1,088
2002 9,461 4,679 14,140 210 75,877 1,125
2003 9,998 4,544 14,542 216 88,377 1,313
2004 10,383 3,507 13,890 201 81,315 1,199
2005 11,047 2,843 13,890 204 77,437 1,137
2006 11,996 2,851 14,847 212 81,125 1,160
2007 12,513 2,421 14,934 216 80,796 1,167
2008 12,234 2,195 14,429 207 78,469 1,123
2009 12,293 1,900 14,193 202 77,630 1,108
2010 11,843 1,703 13,546 192 75,965 1,076
Sources: Royal Hong Kong Police Reviews 1988–1996
Hong Kong Police Reviews 1997–2010
Hong Kong Yearbooks 1986–2010
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
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
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
is counted in each ordinance concerned), of prosecutions and civil disputes. It is completely

which 2,130 (59%) were related to the Dutiable independent of the executive and legislative
Commodities Ordinance, 272 (8%) related to branches of the Government (Judiciary
the Copyright Ordinance, 365 (10%) related to 2011) .
the Trade Descriptions Ordinance, and 373 (10%) The Judiciary publishes the Hong Kong
concerned the Dangerous Drugs Ordinance in Judiciary Annual Report each year. The annual
2011. A total of 3,836 persons and 397 compa- report covers the work of the Court of Final
nies were prosecuted, which resulted in total Appeal, High Court (Court of Appeal and Court
fines upon offenders of HK$15.9 million and of First Instance), District Court, Magistrates’
the imposition of immediate imprisonment in Courts, Tribunals (Lands, Labour, Small Claims,
947 cases (Customs and Excise Department and Obscene Articles), and Specialized Court
2011, p. 67). (Coroner’s Court). Statistical information
Like the Police, the Customs and Excise reported is mainly about caseloads, case dispos-
Department’s priorities of enforcement work are als, and waiting time for the cases of various
sometimes affected by public concern over cer- courts. There is no mention of offence, convic-
tain crimes. For example, infringement of copy- tion, or sentencing.
right and psychoactive drug abuse in young Data on offence and sentencing had been
people have become two of the biggest public included in some of the previous reports. Starting
concerns in recent years. The department has in 1989, comprehensive offence and sentencing
stepped up actions to monitor and crack down the of all courts were recorded in annual reports.
sale of counterfeit goods and the trafficking of However, information on offence and punish-
psychoactive drugs such as ketamine and ecstasy. ment delivered began to be limited to magistrates’
This boosts the number of arrests, although it courts in 1994. Annual reports of 1996–1999 did
does not necessarily mean that the actual number not give information on offence and punishment
of such crimes has also increased. for magistrates’ courts any more, but recorded
the number of persons prosecuted and convicted
12.2.1.4 Judiciary instead. Beginning in 2000, data on offence, sen-
The Judiciary is responsible for the adminis- tencing, and number of people prosecuted and
tration of justice in Hong Kong. It hears all convicted were not included in annual reports.
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
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
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
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
12.3.1 Hong Kong Police The modern, service-oriented, and professional

image of the Hong Kong police we see today was
Refugees who fled from the mainland to set- in stark contrast with the police image before the
tle in Hong Kong around 1949 in order to escape 1970s. For many decades, the police force, which
Communist rule had quickly increased the pop- had been legally mandated to investigate and
ulation of Hong Kong. They were a source of punish corruption offenders, had been a very cor-
cheap labour; some of them were entrepreneurs rupt government department. Corruption might
with capital and expertise in manufacturing. have a link with traditional Chinese culture,
Hong Kong was then beginning to leave behind which sometimes places more emphasis on par-
its image of a small fishing community to chart ticularistic relationships and favouritism than
its course in industrialization and moderniza- established rules in getting things done (Lee
tion. An economically dynamic and socially 1981), but giving the anti-corruption mandate to
heterogeneous society was a new challenge to the police force could have been the greatest
the colonial government, who was faced with obstacle to the eradication of corruption.
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
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
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.
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
Rule of Law, democracy, development, and

human rights are dependent on the degree of suc- 13.1 Role of the Federal
cess that the governments are able to achieve on Government and Its Police
the criminal justice front. The objectives of the Force
criminal justice are prevention and control of
crime, maintenance of public order and peace, There is no independent department of police at
protection of the rights of victims as well as per- the federal level. But the Federal government
sons in conflict with law, punishment and reha- performs numerous police functions. The Federal
bilitation of those adjudged guilty of committing Parliament has paramount jurisdiction over the
of crimes, and generally protection of life and Central and the Concurrent subjects. There can
property against crime and criminality. It is con- be no doubt that police and law and order are
sidered the primary obligation of the state under state subjects. In spite of it, many quasi-police
the constitution of India. subjects are from the federal government. For
The principal formal agencies of criminal jus- example, the administration of the subjects or
tice are police, judiciary, and corrections. Under items like the Central Bureau of intelligence and
the Constitution of India, Police and Prison investigation, Preventive Detention, Arms,
Administration are the State subjects. But, the Ammunitions, Explosives, Extradition, Passports,
Supreme Court at Federal level and High Courts and a host of similar or corresponding subjects is
at state level administer the judiciary in the entire the sole responsibility of the Central Government.
country. Though police and prisons are state sub- The Federal Government has also the power to
jects, the organizational structure, administration, amend the basic Police Acts, like the Indian
and functioning of all the agencies of criminal Police Act, 1861; the Indian Penal Code, 1860;
justice are as per the federal laws such as Indian the Code of Criminal Procedure, 1861; the Code
penal code, Criminal Procedure Code, Indian of Civil Procedure, 1859; and the Indian Evidence
Evidence Act, Police Act, and Prison Act. This Act. These are all binding on the State
paper explains the structure and functioning of Governments. Thus, the constitutionally created
various agencies of Criminal Justice System. flexible situation and the organization and admin-
istration of police (Sethi 1983) in the states are
brought under the purview of the Central
Government under special circumstances
R. Thilagaraj, Ph.D. (*)
Department of Criminology, University of Madras,
(Gautam 1993).
Chennai, 600 005, Tamil Nadu, India

200 R. Thilagaraj
toration of order. At present the force comprises

13.2 Central Bureau of Investigation 1.20 lakhs men distributed over 93 battalions and
many more ancillary institutions. The role of the
The Central Bureau of Investigation (CBI) was force is varied and facing multiplicity of prob-
created in 1963 at the federal level. It was estab- lems. Sometimes it deals with insurgents and
lished to undertake thorough investigation of extremists and also handles sensitive law-and-
important cases having interstate jurisdiction and order situations (Krishna 1980).
international ramifications. The bureau initiates
its own investigation but the State Government
can also borrow its services in the field of preven- 13.5 Structure of the State Police
tion and detection of crime, if and when required
(Raghavan 1989). CBI is headed by Director The State Police under the head of DGP consists
General of Police (DGP) assisted by Regional of Commissionerate, Zones, Ranges, and Districts
Directors. Recently many sensational cases have headed by Commissioner of Police, Inspector
been investigated by CBI. General of Police (IGP), Deputy Inspector
General of Police (Dy. IGP), and Superintendent
of Police, respectively.
13.3 Central Intelligence Bureau
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.
13.10 Crime Statistics
S. % To total Rate of Charge- Conviction

no. Crime heads Cases reported IPC crimes crime sheeting rate rate
(A) Violent crimes
1 Murder 33,335 1.5 2.8 84.2 36.7
2 Attempt to commit murder 29,421 1.3 2.5 89.9 29.9
3 C.H. not amounting 3,782 0.2 0.3 84.9 38.9
murder
4 Rape 22,172 1.0 1.9 94.5 26.6
5 Kidnapping and abduction 38,440 1.7 3.2 72.4 27.7
6 Dacoity 4,358 0.2 0.4 76.4 21.9
7 Preparation and assembly 2,615 0.1 0.2 95.5 25.9
for dacoity
(continued)
(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
under SLL
(J) Cognizable crimes under IPC + SLL
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
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.
13.14 Death Penalty 13.15 Lok Adalats
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%)
prisoners are kept in the Reception Ward for

13.19 Occupancy Rate 3–6 months before being moved to the main
Prison Wards. During this period, prisoners are
keenly observed by the correctional staff and
Year Occupancy rate their hobbies, areas of interest, likes and dislikes,
2008 129.2% personal characteristics, and family background
2009 122.8% are studied and compiled. This compilation is
2010 115.1%
called case-work.
Convicts Occupancy rate
On the basis of their personal, socio-economic,
Male 125,789 (34.1% of total
socio-cultural antecedents of prisoners, as ascer-
inmates)
Female 4,632 (3.7% of total convicts)
tained in the Reception Ward, the prisoners are
Under trials classified and the nature of segregation are on the
Male 229,846 (95.7% of total under basis of the physical and mental health, age
trials) group, sex etc. to different wards. Juvenile delin-
Female 10,252 (4.3% of total under quents are kept in Juvenile Homes exclusively
trials) meant for them (Nitai 2002).
Source: Crime in India, 2010, National Crime Records All the Central and District Prisons have whole-
Bureau. time or part-time physicians in Prison Hospitals
One notable feature of the prison population which have both outdoor and indoor facilities. The
in India is the large number of under-trial prison- medical staffs thoroughly undertake medical
ers (240,098). This large number of under-trial examination of all prisoners periodically. They
prisoners has led to overcrowding in most of the also carry out inspection of food, sanitation, and
prisons (Shankardass 2000). This is a cause of hygiene and other amenities being provided to the
great concern, of which the Federal Government prisoners. Apart from regular vocational training
too has taken note of and has decided to provide in various trades and occupations, and the educa-
financial assistance to the States to modernize tional training schedules, correctional institutions
their existing prisons and build new prisons to in India have also started a large number of pro-
overcome the problem. This overcrowding of grammes to improve the personality and mindset
prisons has taken place despite the fact that bail is of the prisoners. These are programmes on anger
comparatively easy to obtain in the country. management, social skills training, counseling
against drug and substance abuse, Yoga,
Transcendental Meditation, and Vipasana. Many
13.20 Types of Prisons prisons in India have tried these new approaches
and have found the same to be extremely effective
The reception and classification of prisoners in in changing attitudes of prisoners.
India is a long drawn process. At the time of It is encouraging to note that the rate of relapse
admission, the prisoners are examined by Prison in crime is very low in India as compared to other
Officers to verify their personal identify as writ- developed countries like the UK. The extent of
ten in the Prison warrants issued by the Courts. recidivism in India is not more than 10% while in
Thereafter, arrangements are made for safekeep- the UK, it is more than 72% (Walmsley 2008). In
ing of their personal belongings. This is followed 2010, the share of recidivists among all offenders
by a thorough personal search, which is con- has decreased to 8.2% as compared to 9% in 2009
ducted in a decent manner with due care of pri- (Crime in India 2010). Absence of recidivism
vacy and human dignity. Thereafter, the prisoners shows the nature of impact of treatment
are sent to the Reception Ward where they are programmes running in prisons for the reforma-
examined by a Medical Officer, within 24 h of tion and rehabilitation of prisoners. A number of
admission. The Medical Officer is required to alter care programmes for released prisoners are
record a detailed report in writing on a medical being run by the government with the help of
sheet and weightment chart of the prisoner. The non-governmental organisations (NGOs) which
208 R. Thilagaraj
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
13.22 Women in Detention To counter the problem of overcrowding in the

prison, open air prison has been established in a
The National Committee on Women Prisoners majority of states in India and it has been suc-
(1987) has thoroughly examined the conditions cessful in most of the states. An initiative launched
of women in prisons. It has pointed out that there in the country in 1960, open prisons are assigned
should be respect for gender dignity and concern to convicts who have served part of their sentence
for women in all correctional institutions and per- and displayed good conduct. There are 22 open
sonnel in the Criminal Justice System. The police, prisons in India (Report on Jail Reforms 1983). It
prison, correctional, and judicial personnel is an initiative to reform the prisoners; open pris-
involved in the handling of women are especially ons give them freedom to move around freely
trained to ensure this and their knowledge is during the day and earn a living in accordance
updated in laws and procedures applicable to with their skill set. In some of the states, the con-
women. Taking into account the special role of victs are allotted a house where he or she can
women in family life and social development and keep his family with him or her.
the vulnerability of girls, the current policy of the
Criminal Justice System is to avoid the arrest and
detention of women to the extent possible. In 13.24 Probation
cases where women are taken into custody, all
provisions regarding protection of their person Probation is an alternative to imprisonment.
and rights are scrupulously adhered to. At no Community-based treatment of offenders is
stage, a woman arrestee is left unguarded by a widely used in India under the Probation of
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).
Parole is release of an offender from prison before

the termination of his or her sentence based on the 13.27 Lacunas of Juvenile Justice
good behavior he or she maintained in the prison. System
It is aimed at reduction of the period of incarcera-
tion. In India, parole is a conditional supervision Study of juvenile justice systems shows that chil-
of sentence for a short duration to enable the pris- dren committing crimes, as well as others taken
oners to attend to certain problems. However, in charge of in order to prevent the commission of
par with parole in other developed countries, crimes, are not being given the promised care.
there is a provision for premature release of Special police units for juveniles or special train-
offenders in the Criminal Procedure Code. ing to police for dealing with neglected and delin-
quent juveniles are an exception. Juvenile courts
and juvenile welfare boards have not been consti-
13.26 Juvenile Justice in India tuted in each district and their powers are exer-
cised by specified magistrates without any special
The Juvenile Justice (Care and Protection of training in child psychology or child welfare.
Children) Act, 2000, takes into consideration A majority of children are unhappy in the institu-
(1) provisions of the Indian Constitution; (2) tions and the casework services are inadequate in
UN Standard Minimum Rules for the terms of diagnosis, counseling, and planning of
Administration of Juvenile Justice, 1985 (the rehabilitation. The main socialization agents, the
Beijing Rules); (3) UN Convention on the caretakers, are the lowest paid, least qualified and
Right of the Child, 1989; and (4) United at times even ill-informed about the needs of the
Nations Rules for the Protection of Juveniles institutionalized children (Weiner 1991). Very
Deprived of Their Liberty, 1990. few aftercare service are available. Despite a stat-
Juvenile Justice (Care and Protection of utory provision to the contrary, children are not
Children) Act, 2000, is a major step forward in always released on bail, even in case of bailable
terms of being a progressive and proactive legis- offences, by some juvenile courts. The various
lation for the care, protection, treatment, and organs of the JJS are malfunctioning primarily
rehabilitation of “children in need of care and because the system is an ill-coordinated one.
protection” and “juveniles in conflict with law.” It Each of its three main components—law enforce-
is a comprehensive legislation for justice to the ment, adjudication, and correction—frequently
children in the situation of abuse, exploitation, operates haphazardly with little knowledge of
and social maladjustment. what other segments are doing. The piecemeal
210 R. Thilagaraj
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.
Nitai, R.C. (2002). Indian prison laws and correction

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Chandrasekharan, K. N. (2008). Public prosecution in mative role. Delhi: Konark Publishers Private Limited.
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Diversity Within an Asian Country:
Japanese Criminal Justice and 14
Criminology
Tokikazu Konishi
influenced the entire Asian region, and through

14.1 Introduction this we can identify the inheritance of an “Asian”
time. Although the extent of influence from each
Japanese anthropologist Tamotsu Aoki (1999) civilization differs in different areas of this region,
has pointed out that the whole Asian region the existence of this influence is common to all
shares one common trait: its time. Indeed, in areas. Third, in early-modern times, Western
his book Asia dilemma, he argues that the ideal European countries took over and colonized
generalization of “Asia” is only an illusion. almost all parts of the Asian region. Through that
The definition and concept of any specific period of time, the impact of Western European
region is fluid and historically constructed, civilization extended throughout this region.
especially by those in power. This argument is Moreover, this shared historical experience con-
related to the prevalent characterization of the tributed to the emergence of the generalization of
“Orient” proffered by Edward Said (1979), the ideal of “Asia.” Aoki has mentioned that a
after which the word “Orient” has become consequent “historical” time is common to this
commonly regarded as prejudiced, having been region. This type of time includes the pre-modern
generated by dominant power and reverie in times specific to each part of the Asian region, as
early-modern Europe. well as modern times, and thus it also generates
However, from an anthropological standpoint, the differences in social institutions and ethos
Aoki (1999) has noted that we can, in fact, between different regional areas. Fourth, we live
observe “four types of time” flowing simultane- in a contemporary time as well. In this time, all of
ously throughout the Asian region: “indigenous,” us are faced with progress from urbanization,
“Asian,” “historical,” and “contemporary.” First, industrialization, informatization, technologiza-
we find each native culture includes classically tion, and consumer society. American cultures,
observed languages and religions (such as vari- among others, have held great significance in the
ants of animism) in every part of the Asian Asian region.
region, cultures which Aoki has described as These “four types of time” pass simultane-
reflecting an “indigenous” time. Second, the ously in the Asian region in general, and they can
ancient Chinese and Indian civilizations strongly be found in Japanese society as well. But they do
not flow homogeneously in all of Asia, but rather
the particular way they flow varies according to
the societies that experience them. According to
T. Konishi, Ph.D. (*)
Aoki (1999, p. 85), in Japan the fourth time,
Waseda University,1-6-1 Nishiwaseda, Shinjuku-ku,
Tokyo, 169-8050, Japan which is mixing curiously with the third time, is
e-mail: [email protected] beginning to cover the entire society. Nonetheless,

214 T. 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.
In Japan, native laws were rooted in a Japanese

religion that evolved out of animism: Shintoism. 14.2.3 Japanese Historical Time
Thus, criminal law and Shintoism were unified in
archaic Japanese society. The Japanese term After the importation of the Chinese penal codes,
tsumi “crime” is derived from the expression Japanese criminal laws developed almost inde-
tsutsumu mi “wrapping what you really are.” In pendently. Nonetheless, we can observe the exis-
Shintoism, it is believed that the real nature of tence of influence from foreign countries,
humans is good and innocent, such that any tsumi especially China, Korea, and some Western
that has been perpetrated veils the good and inno- European countries. This influence was exerted
cent human nature of the perpetrator. Therefore, on Japan in a wave-like fashion. According to
it is thought that, through some Shinto rituals, Aoki (1999), this period of time can be classified
like misogi (a purification rite), the tsumi can be as “historical” time.
cleared. Interestingly, in Japan, white-collar In 1639, the government implemented a
criminals, especially corrupt politicians, often national isolation policy (except foreign com-
receive people’s forgiveness through a variation merce with China and the Netherlands, and
of this misogi ritual. Apparently, this religious political exchange with Korea). During the Edo
ethos can be seen in the traditional Japanese ten- era (1603–1867), unique criminal laws were
dency to reincorporate ex-criminals into society, further developed. Early in the Edo era, the
which contrasts considerably with the exclusion- government attached importance to general
ary stigmatization of and discrimination against prevention (or deterrence) through punishment.
ex-criminals in societies that have developed high However, the government’s attitude toward
common crime rates. punishment gradually changed. The govern-
ment established the Kujikata Osadamegaki
(the law code of the Edo era) in 1742. As a part
14.2.2 Japanese Asian Time of the Kujikata Osadamegaki, the Osadamegaki-
Hyakkajo (the second volume of the law code
In ancient Japan, since around the fifth century, of the Edo era) included provisions for law-
foreign religions were gradually imported from suits, trials, and punishment. The government
the continent through Korea. Among these, codified judicial precedents of criminal cases
Buddhism and Confucianism were most and framed this code. After this period of
influential. For instance, Buddhism provides the codification, the government came to think
Japanese with the notion of the inga-ouhou “kar- more highly of the notion of special prevention
mic backlash,” and Confucianism furnishes the (or rehabilitation) as the function of punish-
Japanese with the theoretical grounds for the ment. In 1790, for those who were homeless
view of human nature as being fundamentally and had criminal tendencies, a vocational train-
good. ing facility was built in Ishikawa-jima (a water-
In the seventh century, the Chinese legal sys- front area facing Tokyo Bay). This is regarded
tem was very much on the cutting-edge in the as the beginning of institutional treatment in
Asian region. Therefore, the Japanese govern- Japan and this period might have shown the
ment tried to import Chinese laws with the help first emergence of spontaneous modernization
of dynasties in China. Chinese penal codes were in this country.
216 T. Konishi
disciplines of criminal substantive and procedural

14.3 Modernization and Western laws. Furthermore, in the early twentieth century,
Criminal Laws psychiatric approaches, such as forensic psychia-
try, were also adopted in academic circles. For
In the middle of the nineteenth century, Japanese instance, the Japanese Association of Criminology,
society encountered the billow of modern founded in 1913 and still in existence today, was
European civilization, after which the new gov- grounded in this approach. Following such
ernment actively advanced modernization of the approaches, a sociological criminology literature
society. In this section, we will discuss this mod- emerged in Japan.
ern time, or the “Western European” time. We
can classify this period into a part of the “histori-
cal” time, elements of which were already dis- 14.4 Crime, Criminal Justice, and
cussed in Sect. 14.2.3. Criminology in Contemporary
During this period, Japanese criminal justice Japan
was influenced by many countries. At the begin-
ning of modern era, the government laid down 14.4.1 Americanization of Criminal
the Rule of Prison of 1872, which was in line Justice and Criminology
with traditional ideologies. Although government
officials had inspected prisons in the British colo- In the history of Japanese criminology, the
nies in the Asian region, such as Hong Kong and “Susuki versus Tokoro” academic controversy
Singapore, and established this rule, this rule’s over methodology in 1970s has been regarded as
stipulations are also clearly influenced by Chinese momentous, radical, and significant for the disci-
law. This rule was grounded in the spirit of plines of “criminal policy” and “criminology”
Confucianism, which encouraged practices such (Ishizuka 1996). In articles published in academic
as benevolence, and began by declaring the journals, two legal professors, Shuichi Susuki
importance of the humanitarian treatment of (1970) and Kazuhiko Tokoro (1970), heatedly
offenders in prison. debated how we should comprehend the relation-
Next, the government introduced French laws, ship between the two disciplines. This debate
which were based upon the Napoleonic Code, was related to the understanding of the relation-
into Japanese society. Following these laws, the ship between jurisprudence (a sort of dogmatics)
Penal Code of 1880, the Codes of Criminal and the social sciences.
Procedure of 1880 and 1890, and other laws were In his textbook, Susuki (1969) has claimed
established. Nonetheless, the individualism of that each of these disciplines is perfectly inde-
the French laws was considered extreme for pendent. He emphasizes the strict division
Japanese society, and the laws grounded on this between the “norm” and the “fact,” where the
principle were fiercely criticized by scholars and prescriptive statement is fully separated from the
legislators. At this point, the government decided descriptive one. Therefore, value judgments on
to adopt German laws, and the Penal Code of criminal policy cannot be directly derived from
1907, the Code of Criminal Procedure of 1922, the facts as illuminated through criminological
the Prison Law of 1908, and other laws that fol- research. In the theory of criminal policy, our
lowed German laws were established. After that, judgments of value cannot be chosen, but only be
the government continued to prepare modern based upon our legal and social value system.
laws, including the Juvenile Act of 1922, making Susuki was apparently conscious of the
allowances for foreign legal systems. significance of the notion of Wertfreiheit “value-
At that time, “criminal policy,” one discipline freedom” in the social sciences, which was advo-
of law, was mainly adopted for understanding cated by Max Weber (1918/1988).
crime phenomena, in place of “criminology.” In contrast, Tokoro insisted that we should not
This legal approach was closely connected to the separate these two disciplines and that we can
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
Fig. 14.1 Diversion in the Japanese Police Public Prosecutor’s Court

criminal justice system Office
Disposition of
Trivial Offenses
/Non-Penal Fine
Suspension of Suspension of
System for Traffic
Prosecution Execution of
Offenses
Sentence
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
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.
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
References scandal, and endemic political corruption.
Monatsschrift für Kriminologie und Strafrechtsreform,
Aoki, T. (1999). Ajia-jirenma [Asia Dilemma]. Tokyo: 90(2/3), 103–113.
Chuokoron-Shinsha. Pratt, J. (2007). Penal populism. New York, NY:
Braithwaite, J. (1989). Crime, shame and reintegration. Routledge.
Cambridge: Cambridge University Press. Research and Training Institute, Ministry of Justice.
Fisher, L. W. (1980). The Lockheed affair: A phenomenon (2010). Heisei-22-nen-ban hanzai-hakusho [White
of Japanese politics. Unpublished doctoral disserta- paper on crime 2010]. Tokyo: Saiki Printing.
tion, University of Colorado, Boulder, CO. Said, E. W. (1979). Orientalism. New York, NY: Vintage
Foote, D. H. (1992). The benevolent paternalism of Books.
Japanese criminal justice. California Law Review, 80, Stolz, B. A. (2002). Criminal justice policy making:
317–390. Federal roles and processes. Westport, CT: Praeger.
222 T. Konishi
Suda, K. (2007). Funshoku-kessan to kaikei-sousa no sho- zan-yougi [Arresting a senior public prosecutor of the
sou [Aspects of window-dressing accounting and investigative team: Charge of tampering with
accounting manipulation]. In K. Suda, T. Yamamoto, confiscated material in the graft case involving the
& S. Otomasa (Eds.), Kaikei-sousa: Sono jittai to postal system]. The Asahi Shimbun (Morning Edition),
shikibetsuhou, kabuka eno eikyou [Accounting manip- p. 1.
ulation: Its realities, identification, and influence on Tokoro, K. (1970). Keiji-hougaku no ugoki [The trends in
stock prices] (pp. 2–58). Tokyo: Diamond. criminal jurisprudence]. Horitsu Jiho, 42(9),
Susuki, S. (1969). Keiji-seisaku [Criminal policy]. Tokyo: 143–145.
Seibundoh. Weber, M. (1988). Der Sinn der » Wertfreiheit « der sozi-
Susuki, S. (1970). Keiji-seisaku-gaku no gakumon-teki-igi: ologischen und ökonomischen Wissenschaften 1917
Tokoro-shi no gokai o tadasu [Disciplinary significance [The meaning of “Value-freedom” in the sciences of
of criminal policy: Correcting Mr. Tokoro’s misunder- sociology and economics. 1917]. In J. Winckelmann
standings]. Horitsu Jiho, 42(11), 253–254. (Ed.), Max Weber. Gesammelte Aufsätze zur
The Asahi Shimbun. (2010, September 22). Tokusou- Wissenschaftslehre (pp. 489–540). Tübingen,
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
In 1936 the Japanese Government concluded a

15.1 Development of Criminology treaty with the Nazi Government in Germany to
Before the World War II prevent communism. In 1940 Japan enacted the
National Eugenic Law to sterilize a person with
In Japan, psychiatrists took the initiative in the bad inheritance compulsorily after the example of
development of criminology and forensic medi- that proclaimed in 1933 in Germany, although
cine. The leading psychiatrist was Shufu Japan did not carry out the operation for compul-
Yoshimasu (1899–1974). He studied under the sory sterilization frequently as in Germany
guidance of Shuzo Kure, a professor of Tokyo (Yokoyama 1991, p. 7). Under this law, criminol-
Imperial University (current Tokyo University), ogy from the viewpoint of eugenics was prevalent
and worked as a psychiatric researcher at a prison. before the World War II. Even after the war many
He carried out research on twin criminals from leading members of the Japanese Association of
the viewpoint of eugenics after the example of Criminology has been psychiatrists, although
the research by Johannes Lange (1891–1938). He denying involvement in compulsory sterilization
invented a table to describe criminal career of of a criminal with a bad inheritance.1
each criminal by a curved line. As he became a In the United States criminology was developed
professor of Tokyo University, many young able mainly by sociologists before World War II. In
psychiatrists were interested in criminology, one Japan sociology was often misunderstood as a kind
of whom was Osamu Nakata. of socialism and communism, which the Japanese
Tanemoto Furuhata (1891–1975) graduated Government suppressed severely under the Law to
from the Faculty of Medicine at Tokyo Imperial Maintain Public Order of 1925. Therefore, Japanese
University, and became a professor at Kanazawa sociologists were not interested in the field research
Medical College in 1923. Three years later he from the viewpoint of criminology like in the
founded the Kanazawa Association of United States.2 Their main interest was to introduce
Criminology. Under his leadership this associa-
tion developed. As the association covered the
1
In the place of the National Eugenic Law the Eugenic
country, in 1928 it was renamed the Japanese
Protection Law was proclaimed in 1948, of which the
Association of Criminology. main purpose was to suppress the birth of a baby with bad
inheritance. To change the purpose to the protection of
mother’s body at her pregnancy and parturition, this law
was renamed the Mother’s Body Protection Law in 1996,
under which the idea of compulsory sterilization from the
M. Yokoyama, Master (*) viewpoint of eugenics was denied.
2
Kokugakuin University, Tokyo, Japan Some sociologists carried out field research on the family
e-mail: [email protected] system and farmers’ society.

224 M. 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.
15.2 Introduction of Sociology from 15.4 Researches on Juvenile

the United States Soon After Delinquency Under the New
World War II Juvenile Justice System
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
known among scholars in contrast to criminal

15.6 Establishment of the Japanese psychology. Then, by the suggestion of Ryuichi
Association of Criminal Hirano members of the Group to Study
Psychology in 1962 Sociological Criminology decided to found
the Japanese Association of Sociological
After World War II, psychologists began to work Criminology. The first meeting of JASC was
on testing criminals and juvenile delinquents. held in December in 1974.4 Total number of
Those who worked at a family court and at the members of JASC amounted to about 350, of
Juvenile Classification and Detention Center car- which a half was specialists in behavioral sci-
ried out the case studies. To exchange the results ences including sociology and another half was
of their study they organized the Study Group on scholars in criminal law.
Correctional Psychology. Through the initiative
by the main members of the Study Group on
Correctional Psychology the Japanese Association
of Criminal Psychology was founded in 1962. 15.8 Activities of the Japanese
Some sociologists also joined JACP. JACP has Association of Sociological
contributed to the development of psychology in Criminology
the field of screening, classifying criminals and
juvenile delinquents, and developing the treat- Fifteen leading members of Japanese Association
ment programs for inmates in a prison and a juve- of Sociological Criminology wrote a compact
nile training school. textbook entitled “Sociological Criminology,”
and published it as the book edited by the asso-
ciation in 1975. The publication of this textbook
15.7 Establishment of Japanese contributed to the understanding of nature of
Association of Sociological sociological criminology.
Criminology in 1974 JASC began to publish its formal journal
entitled “Japanese Journal of Sociological
In Japan, scholars in criminal law have been Criminology” in 1976. The title of the first spe-
interested in the legal theory in Germany. cial feature in the Volume 1 of JJSC was
However, Riyuichi Hirano and Kazuhiko Tokoro “Problems and Method of Sociological
advocated analyzing criminal law from the view- Criminology,” on which Hiroaki Iwai, Kanehiro
point of “function” after the example of criminol- Hoshino, and Kazuhiko Tokoro submitted their
ogy in the United States. To facilitate the analysis paper. The second feature was composed of a
from the functional viewpoint, they translated a topic on “Social Change and Crime Control,” for
book on “Principle of Criminology (6th Edition)” which two practitioners and one sociologist wrote
written by Edwin Sutherland and Donald Cressey paper.5 The contents of papers in JJSC show the
into Japanese, and published it in 1962. progress in sociological criminology6. The prog-
Hiroaki Iwai wrote a book entitled ress was analyzed by Masami Yajima (1984) and
“Sociological Criminology,” and published it in Hiroaki Iwai (1988). Masami Yajima pointed out
1964. Katsuhiko Nishimura translated George B. that practitioners decreased among increased
Vold’s “Theoretical Criminology,” and published
it in 1970. These three books contributed to the
4
understanding of theories on criminology from First president was Soichi Nasu, my teacher. Second was
the sociological viewpoint. Hiroaki Iwai, followed by Koji Kashikuma.
5
With rapid industrialization the social structure changed
Soichi Nasu and Jyuzaburo Hashimoto edited
drastically. Therefore, at that time the topic on crime con-
a book entitled “Sociological Criminology,” and trol in the changing society was very important.
published it in 1968. In such a situation the term 6
It is a pity that most of the articles in “Japanese Journal of
“Sociological Criminology” became gradually Sociological Criminology” are written in Japanese language.
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
There are two important national research insti-

15.12 Current Problems for Young tutes, that is, the National Research Institute of
Criminologists to Get a Police Science and the Total Institute for Legal
University Post Affairs of the Ministry of Justice. The current
situation of these institutes is as given below.
In the United States criminology is an important Previously, researchers at the National
academic area. On the other hand, in Japan it is a Research Institute of Police Science had free-
minor subject taught at the sociological depart- dom to carry out scientific research independent
ment or the faculty of law at a university. of the policy decided by the National Police
Japanese have also become conservative since Agency.8 Therefore, such researchers as Kanehiro
the breakdown of socialism in Soviet Union and Hoshino and Yoshio Matsumoto produced excel-
East European countries. In such an atmosphere lent achievements by their researches. Nowadays,
youngsters are more interested in psychology the freedom to research is narrowed at NRIPS.
than sociology, especially from the viewpoint of They are requested to conduct research, by
critical analysis of social structure. Many univer- which they contribute to improving the policy by
sities begin to close or cut down the departments the National Police Agency. Typical research is
of sociology because of the decrease in the num- conducted by Yutaka Harada, a director of the
ber of young people interested in the area. In Department on Behavioral Sciences, and some
addition, most sociology departments do not have researchers of his team at NRIPS. They collected
a full-time professor in criminology. Therefore, raw crime data from the police and geo-coded
there are fewer youngsters who study criminol- these data on a map using computers. The pur-
ogy at the university, especially at graduate school pose of making this neighborhood crime maps is
in Japan. to prevent children from being victimized in the
Some able youngsters go abroad to study community. The research is highly regarded by
criminology. If they get a doctoral degree in a National Police Agency.
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.
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
do not offer suggestions for improving the policy

and practice of the criminal justice.
References
In Japan, public organizations are unwilling Iwai, H. (1988). Change in study fields of sociological
to provide a platform for research by professors criminology [written in Japanese]. Japanese Journal
and researches working at an external institute, of Sociological Criminology, 13, 4–10.
because the former do not want to be criticized Iwai, H., Kuroda, N., Hoshino, K., & Matsumoto, Y.
(1975). Development and current situation of studies
on the base of results of the research in order to of sociological criminology. In Japanese Association
maintain their good fame. In addition, it is very of Sociological Criminology (Ed.), Sociological crim-
difficult for professors and researchers at an inology [written in Japanese] (pp. 199–209). Tokyo:
external institute to get permission for their Yuhikaku.
Kuroda, N. (1975). Community and crimes. In Japanese
research from an organization linked to govern- Association of Sociological Criminology (Ed.),
ment. If such difficulty continues, the field in Sociological criminology [written in Japanese] (pp.
criminology will wane. 60–65). Tokyo: Yuhikaku.
Morita, Y. (1977). Sociological criminology and the label-
ing perspective [written in Japanese]. Japanese Journal
of Sociological Criminology, 2, 120–141.
15.16 Conclusion: Towards a New Yajima, M. (1984). Sociology in Japanese Association of
Trend Sociological Criminology [written in Japanese].
Japanese Journal of Sociological Criminology, 9,
80–96.
In the current conservative atmosphere and with Yokoyama, M. (1978). Labeling theory as explaining
sympathy for demands of crime victims the phe- crime [written in Japanese]. Japanese Journal of
nomenon of criminalization is growing. Some Sociological Criminology, 3, 106–124.
criminologists and scholars in criminal law such as Yokoyama, M. (1980). Valuation of leveling theory as
explaining crime [written in Japanese]. Japanese
Setsuo Miyazawa and I analyze this phenomenon Journal of Sociological Criminology, 5, 118–141.
from the critical viewpoint.13 Some analyze it by Yokoyama, M. (1991). Abortion policy in Japan: Analysis
the use of the idea of penal populism. In 2009, the from the framework of interest group. Kokugakuin
Japanese Association of Sociological Criminology Journal of Law and Politics, 29(1), 1–29.
Yokoyama, M. (1993). Emergence of anti-prostitution law
published a book on “Globalized Penal Populism in Japan. International Journal of Comparative and
and its Countermeasures” edited by Koichi Hamai. Applied Criminal Justice, 17(2), 211–218.
The analysis from the viewpoint of penal popu- Yokoyama, M. (1995). Analysis of prostitution in Japan.
lism will hopefully contribute to the development International Journal of Comparative and Applied
Criminal Justice, 19(1), 47–60.
of further democratic reform of the policy and Yokoyama, M. (1999). Trends of organized crime by
practice within criminal justice in Japan. Boryokudan in Japan. In S. Einstein & M. Amir (Eds.),
With globalization the research and discussion Organized crimes: Uncertainties and dilemmas (pp.
in the international arena, for example, at the 135–154). Chicago: The Office of International
Criminal Justice, The University of Illinois at
meetings of the Asian Criminological Society Chicago.
will be more necessary. However, younger Yokoyama, M. (2002). Juvenile justice and juvenile crime:
Japanese criminologists are not active in collab- An overview of Japan. In J. Winterdyk (Ed.), Juvenile
orative research together with foreign criminolo- Justice Systems—International perspectives (second
edition) (pp. 321–352). Toronto: Canadian Scholars’
gists and neither do they attend international Press, Inc.
conferences for exchange of ideas. If such a situ- Yokoyama, M. (2007). Criminalization under conserva-
ation continues, criminology in Japan will not tive public opinion in Japan. Kokugakuin Journal of
play its part in the development of any wider Law and Politics, 44(4), 1–46.
international criminology.
13
Minoru Yokoyama (2007) analyzed criminalization in
the relation to change in public opinion.
Crime and Criminal Justice
in Malaysia 16
Salim Ali Farrar
16.1 Introduction Malaysian Criminal Justice system, as well as

an overview of crime, prosecution and impris-
onment data. There is a dearth of published
On 8th July 2011, the Prime Minister of Malaysia, criminal justice research in Malaysia, so it is
Dato’ Seri Mohd Najib bin Tun Haji Abdul hoped that the following chapter will not only
Razak, announced a review of the Malaysian provide an insight for concerned foreign observ-
Criminal Justice System as part of the ers from within the Asia region and beyond but
Government’s highly publicised “Government also act as a primer for local researchers with
Transformation Programme” and “New Economic active interests in criminal justice.
Model” (Office of the Prime Minister of Malaysia
2011). Together with the setting up of a Centre
for Law and International Legal Studies, with an
international faculty, and the prominence given to 16.2 Overview of the Malaysian
criminal justice reform (one of the two initial Criminal Justice System
research projects), this indicates that crime and
criminal justice have become a political priority Malaysia is a federation comprising 13 individual
in contemporary Malaysia. states and the federal territories of Kuala Lumpur,
The impetus for this review represents part of Putrajaya and Labuan. Criminal laws are applied
a continuing political, social and economic at both federal and state levels, though both have
transformation begun in 2005 following the their particular subject matter and geographical
stepping down of former Prime Minister of jurisdictions, with conflicts between federal and
Malaysia, Tun Mahathir Mohamed. The follow- state law resolved in favour of the former. The
ing chapter provides the backdrop to and details Malaysian Penal, Criminal Procedure and
of this reform process in the context of the Evidence Codes are federal law and have general
application, applying to all states and all ethnic
communities. In addition to the Penal Code, there
is also federal legislation related to drugs enforce-
ment (e.g. Dangerous Drugs Act 1952), national
security, immigration, food and health and trans-
port. These general laws are enforced by the
Royal Malaysian Police (PDRM) and prosecuted
S.A. Farrar, Ph.D. (*)
(generally) by Deputy Public Prosecutors and
Centre for Asian and Pacific Law, Law School,
University of Sydney, Sydney, Australia Assistant Public Prosecutors, working under the
e-mail: [email protected] auspices of the Attorney General, in federal

232 S.A. 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,
attempted murder has been removed, and the dif- Offenc 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
ferent offences for robbery given above merged es
into one “robbery and violent theft” category. Violent Crime
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
into the single category of “breaking and enter- Assault
ing”, as have the different types of theft into 1469 1366 1440 1630 1528 1540 2250 2460 2702 2940 2133
“theft of motor vehicles and m/cycles”. The Robber 6 1 5 9 8 9 5 0 1 0 3
remaining thefts are further differentiated into y and
“aggravated thefts” and “other thefts”, Fig. 16.1. violent
In the last decade, the above table indicates theft
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
2010, the percentage increase in the Crime Crime
Index was a relatively small 3.27%. Taking into Property Crime

account increases in population of approxi-
Breakin 3291 2845 2526 2578 2490 2446 2887 3359 3558 3764 3260
mately 2% per annum, this suggests that the
g and 3 2 5 9 4 5 2 0 8 1 3
crime rate has stabilised over the decade. When enterin
we compare with data over a longer period, g
however, there has been a large increase in the
Theft 5687 6010 6025 6430 6507 6692 8295 8508 8882 8043 7218
reported crime rate, both violent crime and
of 9 9 1 0 6 7 4 1 0 8 2
property crime. Between 1980 and 2004, vio- motor
lent crime increased by 120% and property vehicle
crime by 112% (Sidhu 2005, 10). Between 2004 s
and 2010, the figures had risen by a further 51% (includi
and 3.1%, respectively. While much of this ng
increase could be put down to the proportionate m/cycle
increase in Malaysia’s population, which stood s)
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
2010 (Index Mundi), rates per 100,000 of the ated
population between 1980 and 2004 indicate that thefts 2 8 0 8 6 4 6
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
of 10.86% in the size of Malaysia’s population

Totals 144, 136, 128, 133, 134, 135, 154, 163, 165, 158, 138,
between 2004 and 2010 also demonstrates that of 673 139 019 525 596 326 308 317 623 137 784
violent crime grew in excess of the growth in Proper
population while the rate of property crime ty
actually fell. Crime
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
development and reporting rates (Soares 2004,

156). As mentioned above, official records rou- 16.4 Prosecution and the Courts
tinely underreport crime and reporting error is
more likely in less sophisticated institutional Under Article 145(3) of the Federal Constitution,
structures (Soares, ibid). So the more economi- the Public Prosecutor (Attorney General) has
cally developed Malaysia has become, the more overall responsibility of laying charges and, since
likely crime has been accurately recorded pro- 2009, the prosecution division of the Attorney
ducing increases in the officially recorded figures. General’s Chambers has taken over the conduct
Whether crime has actually increased would of practically all prosecutions in the subordinate
require comparisons with victim surveys, but as courts (referring to Magistrates and Sessions
mentioned earlier, there is only very limited vic- Courts) as well as in the High Court (Attorney
tim survey data available. General’s Chambers 2010, 11). The reform was
If there has been a net increase in actual crime, intended to further professionalise and systema-
the causes could be rooted in Malaysia’s unequal tise prosecution practices. This has increased the
economic development and patterns of urbanisa- workload of state prosecutors and, as can be seen
tion that, in a number of empirical studies for in Fig. 16.2 below, had some impact on the rates
other jurisdictions, have been positively corre- of conviction.
lated with increases in crime (Soares, 167). Since In 2008, the total conviction rate in the High
the establishment of the National Economic Plan Courts, Sessions Court and Magistrates Courts
in 1971 which established affirmative action was 90.6%, with 9.4% of cases resulting in an
plans to enhance the social and economic status acquittal or a discharge. In 2009, the total convic-
of the Malays (Government of Malaysia 1971, 1), tion rate fell to 85.8% and the acquittal rate rose
successive Malaysian Governments have suc- to 14.2%. The conviction rate in relation to par-
cessfully eradicated the association of ethnicity ticular offences is not available.16 Moreover, the
with economic function and drastically reduced figures are not available for the total conviction
the numbers living in absolute poverty. However, rates when other prosecuting agencies were han-
the gaps between rich and poor have increased, as dling some of the prosecutions in the subordinate
have the divides between rural and urban popula- courts in 2008 and the preceding years.17 Despite
tions. Rates of urban poverty, in particular, have the limitations of this data, of particular interest
remained persistently high and shown little are the figures relating to prosecutions in the
change since the Asian Currency Crisis in 1997 High Court which tries the most serious offences
(New Economic Advisory Council NEAC 2010, (punishable by death), and where the conviction
57–58). The strategic shift from agriculture to rate in 2009 fell from 79.5% to 65.5%. The rea-
industry, rural–urban migration patterns, differ- sons given above by the AG’s Chamber for this
ential access to job opportunities, low incomes and fall may provide a partial explanation, as a 274%
loosening of traditional structures of social con- increase in the number of cases dealt with in the
trol15 may account for the continual increases in High Court alone in the space of one year inevitably
violent crime. It may also explain, at least partially,
the disproportionate representation of Indians in
the overall figures for violent crime, where the
16
Given the outroar in the British press in 2011 on publi-
problems of social marginalisation and “gangster-
cation of statistics that seemed to indicate that the convic-
ism” have been most acute (Sidhu 2005, 17–19). tion rate for rape offences in England and Wales was 6%
(when a more detailed analysis would have shown that the
rate was in fact 58%), the reluctance of the Malaysian
AG’s Chambers to publish more detailed data is perhaps
15
See further the evergreen theories of Emile Durkheim understandable.
17
and Robert Merton on “anomie”. For a modern review, see These figures are not mentioned in previous Annual
Bernard et al. (2009), Vold’s Theoretical Criminology, Reports of the Prosecution Division of the AG’s Chambers;
Chaps. 6 and 8. see http://www.agc.gov.my.
Year High Court Sessions and Magistrates Court
Cases Conviction DNA Cases Conviction DNA

Disposed Disposed
2008 367 292 76 1628 1517 111
2009 1008 661 347 13,001 11,360 1,641
Fig. 16.2 (Source: Attorney General’s Chambers (2010, 11))
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
Balance from Cases registered Cases completed Pending
completion
2006 2007 2008 2007 2008 2009 2007 2008 2009 2009
Perlis 8 9 16 1 12 10 - 5 6 20
Kedah 93 105 122 31 31 151 19 14 49 224
Penang 201 221 308 42 111 253 22 24 171 390
Perak 142 127 149 32 43 183 47 21 47 285
Selangor 529 654 733 205 205 922 80 126 404 1,251
Kuala Lumpur 258 258 203 32 5 336 32 60 117 422
Negeri Sembilan 30 36 38 14 11 16 8 9 15 39
Malacca 14 12 25 9 23 37 11 10 24 38
Johore 260 241 261 64 74 106 83 54 88 279
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
Fig. 16.3 Total number of criminal trials in the High Court
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.
TOTAL NUMBER OF CRIMINAL TRIALS IN THE SESSIONS COURTS
completion
2006 2007 2008 2007 2008 2009 2007 2008 2009 2009
Perlis 8 19 42 20 23 29 9 0 13 58
Kedah 182 160 138 63 27 302 85 49 107 333
Penang 452 537 779 206 303 1,586 121 61 1,480 885
Perak 148 210 227 152 53 230 90 36 101 356
Selangor 381 466 551 134 100 2,088 49 15 1,740 899
Kuala Lumpur 612 646 662 152 97 466 118 81 332 796
Negeri Sembilan 156 166 186 59 36 139 49 16 57 268
Malacca 38 55 144 46 114 245 29 25 130 259
Johore 379 371 645 79 912 692 87 638 392 945
Pahang 50 82 114 45 41 767 13 9 737 144
Terengganu 55 67 112 34 64 117 22 19 83 146
Kelantan 96 132 190 80 147 259 44 89 228 221
Sabah 38 48 99 43 72 342 33 21 284 157
Sarawak 117 62 40 76 97 58 131 119 22 76
Total 2,712 3,021 3,929 1,189 2,086 7,320 880 1,085 5,706 5,543
Fig. 16.4 Total number of criminal trials in the Sessions Courts

240 S.A. Farrar
TOTAL NUMBER OF CRIMINAL TRIALS IN THE MAGISTRATES’ COURT
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
Penang 13 12 11 0 1 1,770 1 2 1,651 130
Perak 20 15 15 9 1 28 14 1 11 32
Selangor 15 22 29 18 18 3,132 11 11 2,610 551
Kuala Lumpur 46 47 48 1 1 1,096 0 0 334 810
Negeri Sembilan 3 7 7 5 0 2 1 0 1 8
Malacca 1 6 5 6 1 23 1 2 19 9
Johore 30 31 249 13 626 1,880 12 408 1,386 743
Pahang 12 12 12 9 9 504 9 9 492 24
Terengganu 18 14 25 1 13 136 5 2 55 106
Kelantan 4 21 14 17 21 371 0 28 295 90
Sabah 25 21 28 6 12 513 10 5 428 113
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
Fig. 16.5 Total number of criminal trials in the Magistrates Court

the infliction of physical harm,22 thereby giving

16.6 Criminal Justice Reforms some room to legislate against some of the more
odious forms of domestic violence, if not marital
16.6.1 Criminal Law rape per se.
In addition to “marital rape”, a new section
Since its first introduction to the Federated 377CA23 expands the traditional definition of
Malay States20 by the British in 1936, the con- rape (penetration of the vagina by the penis) to
tent of the general criminal law (the Penal include “sexual connection by object” without
Code) has remained largely intact and reflected consent. This was a direct response to an unsolved
the morals of that era. In more recent times, case that caused public outrage when an eight-
however, key reforms have taken place in rela- year-old girl was found dead with an eggplant
tion to sexual offences. In line with the devel- and cucumber inserted into her genitals (Nazeri
opments in other common law jurisdictions, 2010, 386).
these have included increasing the punishment Perhaps the biggest, and most anticipated,
for convicted rapists, introducing different change to Malaysia’s criminal law in recent years
offence structures (“simple rape” and “aggra- has been the dismantling of the Internal Security
vated rape”) and legislating for the new offence Act (ISA) 1960 and the Emergency Ordinance.
of “marital rape”. The latter was introduced Under the ISA, a person could be arrested on reason-
following persistent lobbying from NGOs and able suspicion of “subversion”. This was defined
women’s groups but was given a particular as any action or behaviour that is “in any manner
Malaysian spin to account for local sensitivi- prejudicial to the security of Malaysia … or to
ties, and the Shariah rights of a Muslim hus- the maintenance of essential services … or to the
band within a valid marriage in particular. economic life therein” (section 8). This was a
Section 375A reads: catch-all provision that, in effect, gave the police
Any man who during the subsistence of a valid and political authorities a free discretion to arrest
marriage causes hurt or fear of death or hurt to his and detain for longer than 24 hours, those whom
wife or any other person in order to have sexual they deemed to be threatening public stability.
intercourse with his wife shall be punished with Once a detention order had been given by the
imprisonment for a term which may extend to five
years.21 minister under section 8, the suspect could also
be detained indefinitely without any accountability
As noted by other commentators (Nazeri 2010, to the courts because of ouster clauses excluding
386), the offence does not criminalise sexual
intercourse without consent within marriage.
Rather, it punishes the assault and physical vio-
lence which precedes it. According to the Shariah
(and the particular legal school followed in
22
In the case of the wife who is “nushuz” (disobedient, i.e.
Malaysia), the husband has an unqualified right
she has not complied with her Islamic obligation), the
to have sexual intercourse with his wife and she husband does have the right and the power to reprimand
is obliged to have intercourse with him, unless and physically chastise her (without causing harm and not
she is physically incapable of having intercourse in anger) if this is not the first time she has refused (cf Abu
Ishaq al-Shirazi 1983, 170). The purpose of exercising
because of sickness, menstruation or postpartum
this power, however, is not so that he may have sexual
bleeding. However, this right does not extend to intercourse but rather as part of his individual obligation
to Allah of bidding the good and prohibiting evil and to
uphold the responsibilities imposed upon the marriage
partners under the Shariah (Abu Ishaq al-Shirazi, ibid,
169). Malaysian religious leaders also warned against
20
Negeri Sembilan, Pahang, Perak and Selangor. having a technical “marital rape” offence as it would be
21
The Penal Code (Amendment) Act 2006, Act A1273, contrary to Shariah; see Norbani Mohamed Nazeri, ibid.
23
which came into force on 7 September 2007. See note 17, above.
242 S.A. Farrar
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.
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.
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
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Criminology and Criminal Justice
System in Pakistan 17
Fasihuddin
justice system in Pakistan are still using the old

17.1 Introduction traditional methods of prevention, interrogation,
investigations, prosecution and imprisonment. The
Criminology as an academic discipline and as a academic and training institutes of the criminal
profession doesn’t enjoy its deserved status in justice system are reluctant to accept the scientific
Pakistan. Amongst 133 universities in Pakistan, knowledge of criminology in their respective cur-
only three universities are offering a post graduate riculum. This paper consists of two parts. In part I,
degree in the subject of criminology. On the other the situation of criminology in Pakistan, its devel-
hand, the crime rate in Pakistan is on the rise despite opment and current status and in part II the struc-
the new police reforms in 2002. The crime rate rep- ture and functions of the major components of the
resented by the official statistics of police is rarely criminal justice system in Pakistan—police, pro-
reliable, as the data on crimes for drugs pushing, bation, prosecution, courts, and corrections are
narcotics smuggling, cyber crimes and trafficking discussed. The paper further discusses the need for
in person are a few categories for which police do inclusion of criminological literature and the
not collect specific data. The Anti-Narcotics Force police studies in the curriculum and educational
(ANF) and Federal Investigation Agency (FIA) are and training institutes of law-enforcement agen-
responsible for other serious and organized crimes cies. The paper emphasises the importance of
which are discussed subsequently. bridging the gap between academics and practitio-
In the wake of terrorism, the usual street and ners of the criminal justice system in Pakistan.
organized crimes took a serious turn and presented
an unimaginable pattern of crime-terror-contin-
uum. Despite this grave situation and increasing 17.2 Part-I
crime rate, the scientific and academic approach
towards research-based policies are yet to be seen 17.2.1 Socio-economic Indicators
and implemented. The components of the criminal of Pakistan
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

248 Fasihuddin
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.
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
Table 17.1 A country recorded crime

Offence 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
Cases against person 44,139 47,076 47,612 55,375 57,312 59,369 62,094 67,017 64,647 71,580
Cases against property 49,696 50,622 54,098 64,046 59,189 59,317 66,902 65,658 63,597 59,702
Accidents 11,159 11,351 12,611 11,568 11,324 10,986 10,041 11,767 11,530 15,472
Local and special laws 127,788 125,780 117,112 134,349 151,588 142,684 145,137 154,221 161,329 158,575
Miscellaneous 54,964 51,699 58,567 58,013 59,815 56,949 84,987 129,886 108,064 83,085
All reported crimes 287,746 286,528 290,000 323,351 339,228 329,305 369,161 428,549 409,167 388,414
Source: Fasihuddin (Jan–Feb 2005). Country Report on Crime Prevention, Community Policing and Juvenile Delinquency in Pakistan. 129th International Senior Seminar,
UNAFEI, Japan
Fasihuddin
17
Table 17.2 Country rate of reported crime

Offence 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
Cases against person 40.91 42.57 41.96 47.65 48.09 48.61 49.67 52.24 49.14 53.01
Cases against property 46.06 45.73 47.69 55.11 49.67 48.57 53.50 51.19 48.32 44.21
Criminology and Criminal Justice System in Pakistan
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.
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.
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
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”.
17.3.3.4 Performance of Prosecution disconnect between police and prosecution often

in Khyber Pakhtunkhwa result in the acquittal of dangerous terrorists who
Generally conviction rates by the prosecution had been arrested with great difficulties. It
have been abysmally low, but it must be empha- remains to be seen whether police will accept the
sized here that the prosecutor places before the supervisory role of the prosecutor.
court all the evidence in his or her possession,
whether in favour of or against the accused.
However, most of the time, this motive is misin- 17.3.4 Judiciary/Courts
terpreted and prosecutors show no interest in
winning cases in favour of their client. Courts are one of the basic components in all jus-
Overall, the conviction rate in the province is tice systems. It is the next step after prosecution
very low. The data obtained from the Police in the criminal justice system. When the prosecu-
Department of the KPK provides an insight into tor presents all evidences against an alleged
the conviction rate and the working of the offender and the offender presents his own evi-
Prosecution Directorate (See Appendix 10, dences in defence then the court concludes the
Table 17.11). Analysis was restricted to 2009 due trial and the presiding judge pronounces the judg-
to the paucity of information and credible data ment. The judgment could be of acquittal or
for the past years. The average conviction rate of punishment.25
crimes against substantive law for the year 2009
remained 15.48%. The conviction rate is higher if 17.3.4.1 Structure and Functions
convictions under special laws are included, but of Courts in Pakistan
the rate of conviction drops when convictions are The judiciary in Pakistan is composed of three
recorded under the substantive law. levels of federal courts, three divisions of lower
The conviction rate however, is not indicative courts, and a Supreme Judicial Council. There
of the efficiency of the Prosecution Directorate. are district courts in every district of each prov-
Nonetheless, in the wake of terrorism and the ince, having both civil and criminal jurisdiction
release of terrorists by the Pakistani Courts is though they deal mainly with civil matters. The
often blamed on the poor prosecution of the case. High Court of each province has jurisdiction over
Moreover, the police divide a single crime into civil and criminal appeals from lower courts
many categories. This is a usual technique of the within the provinces. The Supreme Court sits in
police throughout the world and sometimes is Islamabad and has exclusive jurisdiction over
called the “purification of statistics”. Moreover, disputes between or among federal and provin-
the conviction in terrorism cases is extremely low cial governments, and appellate jurisdiction over
i.e. 2% at the national level while 5% in KPK High Court decisions. There is also a Federal
about which even the higher judiciary has taken Shariat Court established by Presidential Order
serious notice and news in media are of no dearth on 26th May 1980. This Court has exclusive
to put blame on police or prosecution for such a jurisdiction to determine, upon petition by any
low level of conviction (Amin 2011).24 citizen or the federal or provincial governments
For any prosecution department to be success- or on its own motion, whether or not a law con-
ful and submit cases with best evidence before forms to the injunctions of Islam. An Islamic
the courts, good relationships with the police advisory council of ulama (religious scholars)
are crucial. The unfortunate in-coordination and assists the Federal Shariat Court in this capacity
(Barakatullah 2010). Recently the Islamabad
24
Amin, A. (April 19, 2011). Only 2% of terrorists are
25
getting sentenced: In Daily The News International. A major part of this portion is taken with permission
Islamabad: Retrieved May 15, 2011 from http://www.the- from the essay of Barakatullah, Advocate, Judicial System
news.com.pk/TodaysPrintDetail.aspx?ID=42426&Cat=7 in Pakistan, published in Pakistan Journal of Criminology.
&dt=4/19/2011. Vol. 2.No. 3. July 2010.
262 Fasihuddin
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.
Table 17.3 Judicial statistics for District Court of Khyber Pakhtunkhwa-2009

Pending as on Institutions from 01.01.2009 Total for disposal Disposal from 01.01.2009 Balance as on
01.01.2009 to 31.12.2009 to 31.12.2009 31.12.2009
23,681 76,005 99,686 79,963 19,723
Source: Judicial Statistics of Pakistan 2009. Published by the Secretariat of Law and Justice Commission of
Pakistan, Supreme Court Building, Islamabad
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
Table 17.4 Disposal of cases by all courts in Pakistan

1st Jan to 31st Dec 07 1st Jan to 31st Dec 08 1st June 09 to 31st May 2010 % Age increase in disposal of cases as compared to
2007 2008
Supreme Court of Pakistan 10,018 9,639 17,348 73 80
Federal Shariat Court 2,066 1,850 1,257 −39 −32
High Courts
Lahore High Court 53,877 74,542 109,422 103 47
High Court of Sindh 12,493 16,524 18,124 45 10
Peshawar High Court 11,627 11,556 13,792 19 19
High Court of Balochistan 3,297 3,627 3,078 −7 −15
All High Courts 81,294 106,249 144,416 78 36
Subordinate Judiciary
Punjab 1,246,665 1,503,904 2,281,062 83 52
Sindh 140,688 146,458 265,101 88 81
KPK 336,552 364,882 340,106 1 −7
Balochistan 23,330 25,429 44,368 90 74
All District Courts 1,747,235 2,040,673 2,930,637 68 44
All Courts Consolidate 1,840,613 5,158,411 3,093,658 68 43
Source: Dr. Faqir Hussain. (2011). The judicial system of Pakistan. Islamabad. Retrivied 28 Aug 2011 from http://www.supremecourt.gov.pk/web/user_files/File/thejudicialsys-
temofPakistan.pdf
Fasihuddin
17.3.5.2 Prison Statistics Academy for Prison Administration (NAPA),

As mentioned above, there are a total of 99 Lahore—the chief staff training institute of pris-
prisons in Pakistan. Out of the total, 32 prisons ons and prison data collection agency in the
are in Punjab, 22 in Sindh, 23 in KPK, 11 in country—identified a number of other issues and
Balochistan, 5 in Gilgit-Baltistan and 6 in Azad problems including shortage of manpower to run
Kashmir. Furthermore, 25 of the total prisons are the prisons, inadequate security devices, unhy-
the Central Jails situated in major cities of gienic water and food and lack of recreational
Pakistan, 50 are District Jails, 9 are Sub Jails, 5 facilities for the inmates. Though the jail admin-
are specified jails for women, 5 Juvenile Jails, 1 istration generally talks of these perennial issues
Special Prison and 4 Judicial Lock-ups. and chronic problems being faced by them, no
The situation in Pakistani prisons is very reports or research papers are available on any of
unhealthy. Mostly the prisons are overcrowded. the above. Like police, the prison officials com-
As it can be seen from Table 17.11 that the pris- plain of challenges but rarely have any solutions.
ons in Pakistan have the capacity for only 42,670 A formal review of Pakistani prisons is required.
prisoners while they are carrying out a population
of 78,328 prisoners i.e. about 83% more than the 17.3.5.3 Prison Reforms
authorized capacity (See Table 17.5 for details). There have been voices regarding prison reforms,
Based on this information, it can be concluded however, no concrete step has been taken by any
that there were 44.2 prison inmates per 100,000 administration for bringing any conclusive reforms
population. It is extremely low level of inmates in prison system. The most visible step taken by
when compared by international standards. For any government in the country is the release of
example, the per capita inmates in the US are 737 prisoners, or remission of sentence of some pris-
per 100,000 population, 615 in Russia, 148 in the oners on special occasions like the Independence
UK, 118 in China, and 125 in Australia day or Eid day. According to the Principal of
(International Center for Prison Studies 2012).30 NAPA, the jail rules of Pakistan are very old and
Of course there is overcrowding, but that is are unfit for the present over-crowded and over-
because Pakistan has a very outdated colonial burdened jails with poor ventilation and other sys-
prison system, and the overall number of 44.2 per tems. No concrete steps have been taken for using
100,000 has not come about because Pakistan is the prisoners as a labour for producing industrial
overly non-punitive, it is a resource problem. goods, thereby contributing to the local economy.
Similarly, there is 83% over capacity mentioned
is very interesting with a prison population of
78,328. However, compared to Pakistan, the 17.3.6 Probation
number of inmates in the United States is
2,193,798 i.e. 96% more than the prison popula- Imprisonment is not the only way to respond to
tion in Pakistan. Pakistan would have had a prison the criminals. There are various alternative meth-
population between 1.3 and 1.4 million inmates ods to imprisonment including probation which
if they had been on the level of the United is arguably one of the most progressive contribu-
States. tions to modern criminal policy (Qureshi 1999).
Besides overcrowding, Masood Khan (2010), It is a very important agency in criminal justice
who is the Principal of the National Institute of system. Those offenders who, according to the
Prison Administration, now called National court, are likely to be reformed, and who are not
dangerous to society, are not sentenced to impris-
30
onment and are kept on probation under the
International Center for Prison Studies. (2012). Entire
world—Prison Population Rates per 100,000 of the
supervision of the state-probation officer.
national population. Retrieved May 05, 2012 from http:// Probation is “a period of time when a criminal
www.prisonstudies.org/info/worldbrief/wpb_stats. must behave well and not commit any more
php?area=all&category=wb_poprate. crimes in order to avoid being sent to prison”
266 Fasihuddin
Table 17.5 Province-wise prison population and authorized capacity-2009

Sr. no. Name of province No. of prisons Authorized capacity Prison population
1. Punjab 32 21,527 52,318
2. Sindh 22 10,285 14,422
3. KPK 23 7,982 7,549
4. Balochistan 11 2,173 2,946
5. Azad Kashmir 06 530 663
6. Gilgit Baltistan 05 173 430
Total 99 42,670 78,328
Position updated till 31 Dec 2009
Source: Khan, M. M. (2010). Prison System in Pakistan: Pakistan Journal of Criminology. Vol.2. No. 3. July 2010
“and when those who believe in Our (Allah’s) Verses

(Probation 2009). As defined by Elrod and Ryder, come to you, please tell them, peace be upon you.
it is the supervised release of an individual by a Your Rub (Sustainer) has prescribed for Himself
court (Elrod and Ryder 2005). In the words of Mercy so that whoso of you commits some misdeed
due to ignorance and repents thereafter and amends
McLaughlin and Muncie (2001) probation is the
himself, then surely Allah is Forgiving Merciful”.
supervision of offenders in conditions of freedom
by designated officers of the court (sometimes Probation department in Pakistan performs its
called probation officers or community correc- functions under The Good Conduct Prisoner’s
tions officers). Nowadays regarded as an “alter- Probational Release Act 1926, Probation of
native to prison”, though, historically, has been Offenders Ordinance 1960, and JJSO 2000, and
viewed as an “alternative to punishment”.31 the rules formulated under various laws (Sajid
Islamic philosophy of crime does not profess 2009). According to 3rd and 4th periodic report on
hating the criminal rather it professes hating the Convention on the Rights of the Child submitted
crime and reforming the criminal. Quoting from by Pakistan, “there is lack of awareness about the
Ibn-Timya on philosophy of punishment, one [probation] system and its significance. Police,
scholar, Qadir (1988), comments that “Islam is a prison officials and even in the ranks of lower judi-
blessing and benevolence to humanity, not punish- ciary there is lack of awareness concerning proba-
ment. Therefore, those who award punishment must tion system”. Similarly, Sajid (2009) reported that
take into consideration the principles of blessing only 2% of the police have heard about the JJSO
and benevolence. Punishment by state is similar to and less than 1% has read the JJSO.
the father punishing his child or the doctor treating
the illness of a patient”. He further comments that 17.3.6.1 Probation Procedures
“the concept of punishment is for the reformation of The Probation of Offenders Ordinance (1960),
the individual and the society”. Similarly, the proba- Section 5 empowers the Judiciary/courts to place
tion system is based on the philosophy of “eradicat- certain offenders on probation not more than 3 years
ing the crime not the criminal”. Many Islamic who are eligible for release on probation. After
scholars quoted various sayings of the Prophet release of offenders on probation, the Reclamation
Muhammad (Peace Be Upon Him) and the Quranic and Probation (R&P) department in the province is
verses for reformation and correction. To quote one to supervise, monitor and rehabilitate them in the
example from the Quran, see the translation of the community. Probation and parole officer plays the
verse 6:54 by Dr. Abdul Majeed Aulak: key role in the whole process of probation system
from release of offenders to successful rehabilita-
31
tion (Bhutta 2010). Judicial Magistrate Court,
A major part of this portion is taken with permission
from the essay of Mazhar A. Bhutta Community Based
Session Court, and other Courts are authorized to
Rehabilitation of Offenders; an Overview of Probation release any offender on probation in Pakistan.
and Parole System in Pakistan, published in Pakistan In some circumstances the courts allow condi-
Journal of Criminology. Vol. 2. No. 3. July 2010. tional discharge of an offender depending upon
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
Table 17.6 Province-wise situation of probation officers and probationers in Pakistan

Probation office Probationers
Province Male Female Total Male Female Juveniles Total
Male Female
Punjab 35 1 36 20,774 225 217 0 21,216
Khyber 16 6 22 1,607 17 43 2 1,669
Pakhtunkhwa
Sindh 1 0 1 277 0 33 0 310
Balochistan 6 0 6 2 0 0 0 2
Pakistan 58 7 65 22,660 242 293 2 23,197
Source: National Academy for Prison Administration,(NAPA) Lahore Pakistan (former CJSTI)
Dated 30 March, 2011
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.
Table 17.7 Province-wise situation of parole officers and parolees in Pakistan

Province Parole officers Parolee
Male Female Total Male Female Juveniles Total
Male Female
Punjab 8 2 10 99 0 0 0 99
Khyber 2 0 2 5 0 0 0 5
Pakhtunkhwa
Sindh 1 0 1 7 0 0 0 7
Balochistan 2 2 4 80 0 0 0 80
Total 13 4 17 191 0 0 0 191
Source: National Academy for Prison Administration,(NAPA) Lahore Pakistan (former CJSTI, Dated
30 March, 2010)
17.4 Conclusion The courts are overburdened. The National

Judicial Policy (2009) was a good initiative by
The development of criminology in Pakistan is the National Judicial Policy Making Committee.
still in its infancy. There are a very few Universities The policy aims at providing speedy justice. The
offering courses in criminology. The criminal policy is revised recently by the committee.
justice system in Pakistan has not been very suc- However, it is yet to be seen whether the policy is
cessful in delivering justice. The Access to Justice properly implemented or otherwise.
Programme, a huge programme of US $350 mil- The prisons are overcrowded and there seems
lion, launched in (2001), to reform the criminal no modernization of the colonial prison adminis-
justice system does not seem to have achieved its tration. However, inmate population per capita is
targets in terms of police, legal and judicial far lower than the international standards in
reforms. Pakistan. The department of probation is also
The police are facing the new challenges of poorly developed and the system of parole and
the twenty-first century. The biggest among probation has yet to gain strong grounds in
those is terrorism. Under the new police Pakistan.
reforms, National Public Safety Commission, In the final analysis, the criminal justice sys-
National Police Bureau and Criminal Justice tem is a colonial relic which is not compatible to
Coordination Committee have been established the socio-cultural environment of Pakistan. To
on various levels. However, neither the perfor- make this system a success, assistance of the
mance nor image of the police is improved, international criminal justice community is
despite the new police law in 2002. The Police needed. Promotion of criminology, policing sci-
Rules of 1934 are still not revised and ences and security studies will be one of the
amended. major steps towards a better understanding and
Prosecution has been developed into a sepa- reforms in the criminal justice system of Pakistan.
rate department since 2005. Since then, the pros- Indigenous research and learning from interna-
ecution system has not gone positively, rather the tional scholarship and best practices should be
rate of conviction has remained at very lower lev- the aim of all those who are committed to see
els. Despite its separation in 2005 it still has to criminology as a developed discipline in Pakistan.
formulate proper rules and procedures for its For this purpose, the Pakistan Society of
operation. Proper trainings and developing pro- Criminology is committed to establish an Institute
fessional attitude in the prosecution officials will of Criminology, Research, Security Studies and
help improve its image. Justice Education.
270 Fasihuddin
17.5 Appendix 1
Crime Record Flow in Pakistan
Police ASP/DSP SP/DPO

DIG Office
Station Office Office
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
ASP : Assistant Superintendent of Police DIG: Deputy Inspector General of Police

DSP : Deputy Superintendant of Police IGP: Inspector General of Police
DPO: District Police Officer SP: Superintendant of Police
Govt.: Government
Fig. 17.2 Crime record flow in Pakistan

17.6 Appendix 2
Table 17.8 Situation of Crime in Pakistan- 1991–2008

Year Population in Recorded Crime rate
millionsa crimesb
1991 112.61 287,746 255.52
1992 115.54 286,528 247.99
1993 118.5 290,000 244.73
1994 121.48 323,351 266.18
1995 124.49 339,228 272.49
1996 127.51 329,305 258.26
1997 130.56 369,161 282.75
1998 133.32 428,549 321.44
1999 136.41 409,167 299.95
2000 139.41 388,414 278.61
2001 142.35 380,659 267.41
2002 145.28 399,006 274.65
2003 148.21 400,680 270.35
2004 151.09 441,907 292.48
2005 153.96 447,756 290.83
2006 156.77 537,866 343.09
2007 159.06 538,048 338.27
2008 162.37 576,185 354.86
a
Economic Survey of Pakistan 2008–2009. Table No.
12.1. p. 194
b
National Police Bureau, Islamabad, Pakistan
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
Table 17.9 (continued)

Fatal accidents 2,604 852 707 230 4,393
Non-Fatal accidents 2,702 630 1,969 240 5,541
Miscellaneous 100,051 15,564 23,719 1,918 141,252
Crime against property 81,546 24,560 2,208 2,158 110,472
Highway dacoity 73 73 4 42 192
Bank dacoity 8 20 3 1 32
Petrol pump dacoity 13 22 0 5 40
Other dacoity 2,007 2,051 53 107 4,218
Highway robbery 230 56 11 5 302
Bank robbery 17 13 1 1 32
Petrol pump robbery 47 77 1 0 125
Other robbery 13,651 5,167 171 184 19,173
Burglary 11,235 2,458 518 244 14,455
Cattle theft 7,961 684 89 92 8,826
Motor vehicle theft 16,343 10,525 718 1,049 28,635
Other theft 29,961 3,414 639 428 34,442
Total PPCa crime 239,122 61,426 39,022 8,189 347,759
Local and special laws 135,314 16,230 75,061 1,821 228,426
Arms act 64,113 10,084 31,603 883 106,683
Prohibition order 48,048 4,816 27,222 556 80,642
Other local and special 23,153 1,330 16,236 382 41,101
laws
Total recorded crime 374,436 77,656 114,083 10,010 576,185
Source: National Police Bureau, Islamabad, Pakistan
a
Pakistan Penal Code, 1861
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)
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
Box 2: Sindh University, Jamshoro

Two years Postgraduate Programme
1. CRM 501a Fundamentals of Criminology
2. CRM 502 Criminal Justice System
3. CRM 503 Research Methods
4. CRM 504 Islamic Perspectives of Crimes
5. CRM 505 Juvenile Delinquency and Female Criminality
6. CRM 506 Terrorism and Violence
7. CRM 507 Penology
8. CRM 508 Criminal Psychology
9. CRM 601 Policing
10. CRM 602 Constitution Rights and Civil Liberties
11. CRM 603 Criminal Investigation Methods
12. CRM 604 Comprehensive Viva-Voce
13. CRM 605 Dissertation/ Research Project
Source: Official web site of Department of Criminology,
University of Sindh, Jamshoro. Available at http://www.unis-
indh.edu.pk
a
A subject code
Box 3: University of the Punjab

One year diploma in criminology and security studies
1. Crime and Criminality: Theory and Policy 1. Research Methods in Criminology
2. Criminal Justice System of Pakistan 2. Criminal Law and Penal Code of Pakistan
3. Corruption Studies 3. Criminal Investigation
4. Introduction to Behavioural Sciences 4. Forensic Science in Criminology
Master in Criminology and Security Studies is a 2-year program consisting of 4 semesters. To qualify for the degree,
a student should complete 18 courses, Internship and Thesis
1. Introduction to Criminology 1. Crime and Security
2. Introduction to Security Studies 2. Geographical Information System (GIS)
3. Computer Applications 3. Criminal Justice System of Pakistan
4. National and International Perspective on Crime and Security 4. Research Methods in Criminology
5. Crime and Criminality: Theory and Policy 5. Social Statistics in Criminology
274 Fasihuddin
Box 3: University of the Punjab

1. Organizational Behaviour and Human Resource Development 1. Gender and Crime
2. Crime and Criminology in Pakistan 2. Terrorism and Violence Drug Abuse and
3. Islamic Perspective on Crime and Punishment Related Crimes
4. Criminal Investigation 3. Procedures of Evidence in Criminal Law
5. Community Justice and Crime Prevention 4. Forensic Science in Criminology
6. Child Abuse and Juvenile Delinquency 5. Policing
7. Penology 6. Organized Crime and Money
8. Criminal Psychology 7. Laundering
9. Crime and Mental Health Issues 8. Internship
9. Thesis
Source: Official web site of Department of Criminology, University of Punjab. Available at http://www.pu.edu.pk
Box 4: Karachi University

Two years Masters in Applied Criminology
1. Introduction to Criminal Behaviour 1. Organizational Problem and Management
2. Theoretical Perspective of Crime and Criminal Behaviour 2. Islamic Perspective on Crime & Punishment
3. Research Methodology in Criminology 3. Policing and security
4. Principal of Criminal Law and Justice System 4. Forensic Genetics and Psychology
5. Correctional Institution as Social System 5. Statistical Methods in Criminology
Core Course Core Course
1. Terrorism, Violence and Control 1. Penology
2. Introduction to Criminal Investigation 2. Procedure of Evidence in Criminal Law
3. Research Thesis 3. Research Thesis
Optional Courses (students are required to select at least 2 Optional Courses (students are required to select
subjects) at least 2 subjects)
1. Drug Abuse and Related Crimes 1. Mental Health and Issues
2. Gender and Crimes 2. Child Abuse and Juvenile Justice System
3. Organized Crime and Money Laundering 3. Sentencing as Post Conviction Strategy
4. Advance Research Methodology 4. Human Rights Law Enforcement Agencies
Source: Provided by a Master Student of the Criminology, Karachi University
Box 5: Author’s proposed curriculum of M.Sc. criminology

Previous year (1st year) Final year (2nd year)
Previous year (1st year) Final year (2nd year)
1. Basic Criminology 1. Criminal Justice System
2. Criminal Law and Procedure 2. Investigation, Intelligence and Security Studies
3. International Crimes 3. Contemporary Criminology and Policing
4. Police & Policing 4. Human Rights
5. Criminological Research 5. Individual Research Thesis (Tutorial)
6. Viva Voce
Source: Fasihuddin (2008). Expanding Criminology to Pakistan. Peshawar: Pakistan
Society of Criminology
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
17.11 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
17.12 Appendix 8 (l) Enter and inspect without a warrant on

reliable information any public place, shop
Functions of the Police or gaming-house where alcoholic drinks or
It includes, but is not limited to, narcotics are sold or weapons are illegally
(a) Protect life, property and liberty of citizens; stored and other public places of resort of
(b) Preserve and promote public peace; loose and disorderly characters;
(c) Ensure that the rights and privileges, under (m) Obey and promptly execute all lawful
the law, of a person taken in custody, are orders;
protected; (n) Aid and co-operate with other agencies for
(d) Prevent the commission of offences and pub- the prevention of destruction of public prop-
lic nuisance; erty by violence, fire, or natural calamities;
(e) Collect and communicate intelligence affect- (o) Assist in preventing members of public from
ing public peace and crime in general; exploitation by any person or organized
(f) Keep order and prevent obstruction on public groups;
roads and in the public streets and thorough- (p) Take charge of lunatics at large to prevent
fares at fairs and all other places of public them from causing harm to themselves or
resort and in the neighbourhood of and at the other members of the public and their prop-
places of public worship; erty; and
(g) Regulate and control traffic on public roads (q) Prevent harassment of women and children
and streets; in public places.
(h) Take charge of all unclaimed property and to (r) Affording relief to people in distress situa-
prepare its inventory; tions, particularly in respect of women and
(i) Detect and bring offenders to justice; children;
(j) Apprehend all persons whom police are (s) Providing assistance to victims of road acci-
legally authorized to apprehend and for whose dents; and
apprehension, sufficient grounds exist; (t) Assisting accident victims or their heirs or
(k) Ensure that the information about the arrest their dependants, where applicable, with such
of a person is promptly communicated to a information and documents as would facili-
person of his choice; tate their compensation claims.
278 Fasihuddin
17.13 Appendix 9
Box 7: Police reforms in Pakistan

1. 1948 Passage of Bill to introduce a Metropolitan System of Policing in Karachi
2. 1951 Recommendations of Sir Oliver Gilbert Grace, IG Police, NWFP
3. 1961 Police Commission headed by Mr Justice J.B. Constantine
4. 1962 Pay & Services Reorganisation Committee (Justice Cornelius)
5. 1970 Police Commission headed by Major General A.O. Mitha
6. 1976 Police Station Enquiry Committee headed by M.A.K. Chaudhry, IG Police
7. 1976 Law and Order Sub-Committee headed by Ch. Fazal Haque
8. 1976 Police Reforms Committee headed by Rafi Raza
9. 1981 Orakzai Committee on Police Welfare, Promotion and Seniority Rules
10. 1982 Cabinet Committee on the Emoluments of SHOs
11. 1983 Cabinet Committee on Determining the Status of SHOs
12. 1983 Sahibzada Rauf Ali Committee
13. 1985 The Police Committee headed by Mr Aslam Hayat
14. 1987 Report of the two-member delegation’s visit to Bangladesh and India
15. 1989 Report of the seven-member delegation’s visit to Bangladesh and India
16. 1990 Police Reforms Implementation Committee—M.A.K. Chaudhary
17. 1995 Report of the UN Mission on Organized Crime in Pakistan
18. 1996 Report of the Japanese Police Delegation on the Police System in Pakistan
19. 1997 Committee on Police Reforms under the Chairmanship of Interior Minister
20. 1998 Report of the Good Governance Group on Police Reforms: Committee Vision
21. 2000 Report of the Focal Group on Police Reforms: NRB Draft 2000
Source: HRCP/CHRI 2010. (2010). Police Organization in Pakistan. Lahore: Human Rights
Commission of Pakistan
17.14 Appendix 10
Table 17.11 Conviction Rate in Khyber Pakhtunhwa

—2009
S. no. Offences % Age 18 Theft 31%
1 Murder 9% 19 Car theft 58%
2 Attempts to murder 4% 20 Other motor vehicle theft 26%
3 Hurts 7% 21 Car snatching 44%
4 Zina (rape) 15% 22 Other motor vehicle snatching 24%
5 Kidnapping other 11% 23 Motor cycle theft 42%
6 Kidnapping for ransom 7% 24 Motor cycle snatching 60%
7 Child lifting 22% 25 Fatal accident 5%
8 Abduction 2% Source: Office of the Additional Inspector General Police
9 Assault on police 29% (Investigation), Khyber Pakhtunkhwa, Pakistan
10 Assault other 19%
11 Ordinary dacoity 15%
12 Highway dacoity 0%
13 Bank dacoity 0%
14 Ordinary robbery 26%
15 Highway robbery 0%
16 Bank robbery 0%
17 Burglary 26%
17.15 Appendix 11
Criminal Courts Under Section 6 of CrPC.
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
Classification of Criminal Courts
1. Supreme Court 2. High Court 3. Session Courts 4. Magisterial Courts
i. Addl. Session Court ii. Asstt. Session Court
i. Executive
Magistrate
1. District Magistrate 2. Addl. Magistrate 3. Sub.Div. Magistrate 4. Special Executive

Magistrate
ii. Judicial Magistrate
A. Magistrate 1st Class
B. Magistrate 2nd Class
C. Magistrate 3rd Class
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
17.17 Appendix 13 tioner, meet him frequently, make enquiries

into his conduct, mode of life and environ-
A detailed list of all the functions by a Probation ments, and wherever practicable, visit his
Officers has been given in the Probation of Offenders home from time to time;
Ordinance (1960), Section 10 which are • If any probationer under his charge be out of
• Explain to every probationer placed under his employment, endeavour to find suitable
charge, the terms and conditions of the employment for him and assist, befriend,
Probation order made in respect of such pro- advise and strive to improve his conduct and
bationer, and if so deemed necessary, by warn- general conditions of living;
ings, endeavour to ensure their observance by • Encourage every probationer placed under his
the probationer; supervision to make use of any recognized
• In the first 2 months of probation of every pro- agency, statutory or voluntary, which might
bationer under his charge, meet the proba- contribute towards his welfare and general
tioner at least once in a fortnight, and thereafter, well-being, and to take advantage of the social,
subject to the provisions of the Officer in recreational and educational facilities which
Charge, keep in close touch with the proba- such agencies might provide;
• Where a probationer under his supervision, who http://www.prisonstudies.org/info/worldbrief/wpb_

stats.php?area=all&category=wb_poprate
has executed a bond, with sureties under section
Khan, N. A & Sajid, I. A. (2010). Kidnapping in the North
5, is found to have committed any breach of the West Frontier Province, Pakistan. Pakistan Journal of
terms of his bond, or to have otherwise miscon- Criminology. 2(1).
ducted himself, to bring such breach or miscon- Khan, M. M. (2010). Prison System in Pakistan. Pakistan
Journal of Criminology. 2(3).
duct to the notice of his sureties;
McLaughlin, E., & Muncie, J. (2001). In E. McLaughlin
• Maintain the books and registers and submit & J. Muncie (Eds.), The Sage dictionary of criminol-
reports prescribed under these rules; and ogy. London: Sage Publications.
Subject to the provisions of these rules shall carry Ministry of Interior. (1981). Crime in Pakistan
(1947–1981). Islamabad, Government of Pakistan. c.f.
out the instructions of the Court in regard to any
Chaudhry, M.A.K. (1997). Policing in Pakistan.
probationer placed by the Court under his Lahore: Vanguard Books (Pvt) Ltd.
supervision. Mirza, M. M. (2010). Role and responsibilities of
public prosecutors in Pakistan. Pakistan Journal of
Criminology. 2(3).
North-West Frontier Province Prosecution Service
References (Constitution, Functions and Powers) Act. (2005).
P&D. (2006). Access to Justice Programme. Government
Amin, A. (April 19, 2011). Only 2% of terrorists are of Punjab. Retrieved 8 Sept 2011 from http://www.
getting sentenced: In Daily The News International. pndpunjab.gov.pk/page.asp?id=52
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thenews.com.pk/TodaysPrintDetail.aspx?ID=42426& Hard Place: Pakistan’s criminal justice system in tran-
Cat=7&dt=4/19/2011 sition. Pakistan Journal of Criminology. 2(3).
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Journal of Criminology. 2(3). Advanced Learner’s online Dictionary: http://dictionary.
Bhutta, M. H. (2010). Community based rehabilitation of cambridge.org/define.asp?key=63048&dict=CALD.
offenders; an overview of probation and parole Qadir, A. (1988). Islamic Criminal Law part 2. [Urdu].
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Thinking for New Horizon
in Criminal Justice: Moving from 18
Retributive to Restorative Justice
in the Treatment of the Offender
in Sri Lanka
M.A.D.S.J.S. Niriella
on the retributive/punitive concept is being

18.1 Introduction replaced by the restorative concept, a process
which involves the reintegration of both the
The Criminal Justice system in Sri Lanka has offender and the victim within the community.
undergone transformations in the last five Today, the wrongdoer of a criminal offence is not
decades. The early traditional method of the considered (only) as an enemy of the society who
administration of criminal justice is no longer should be treated harshly by imposing severe
limited to punishing the perpetrator with a puni- punishment but as a person who needs treatment
tive approach to satisfy the victim. The (recent) to overcome his/her status of criminality in order
history of the criminal justice system in Sri Lanka to be reintegrated into the society as a law-abid-
shows us that the philosophy of the primeval ing citizen. Further, the victim of crime is also
administration of criminal justice based primarily being looked upon as a person who needs support
to recover from physical, mental, economical and
other losses that have occurred due to the crime
Attorney-at-Law; Senior Lecturer Public and International committed by the offender, in addition to reha-
Law Department, Faculty of Law University of Colombo; bilitation and reintegration into society in order
Course Director of Advanced Criminal Law and Criminal to be free from the victimized mentality. New
Justice, LLM Programme, Faculty of Law University of
methods have been introduced to the criminal
Colombo; Coordinator—Certificate Course in
Criminology and Society, Development Resource Centre justice system to deter crime, sanction the perpe-
(DRC), Department of Economics, Faculty of Arts, trators, rehabilitate the offenders, support the vic-
University of Colombo; Visiting Lecturer, Department of tims of crime, develop the victim offender
Law, University of Jaffna; Member of the Prison Welfare
mediation and finally control the human behav-
Association Sri Lanka; Member of the National Research
Committee, National Science Foundation, Sri Lanka; iour and protect the society from crimes and
Member of Asia Crime Prevention Foundation, Sri Lanka; criminals.
Life Member of South Asian Society of Criminology and This paper focuses on such new methods and
Victimology, India; Member of Advisory Penal,
the transformation from retributive to restorative
International Journal of Contemporary Laws; Member of
International Economic and Development Research justice in the criminal justice system in Sri Lanka
Foundation India and Member of International Bar with a special focus on the treatment of offend-
Association; Editor of US–China Law Review. Contact: ers. Further, the study examines whether these
[email protected]
means and methods have affected the crime rate
M.A.D.S.J.S. Niriella, M.Phil (*) in Sri Lanka. The full paper contains three main
Department of Public and International Law, Faculty of
Law, University of Colombo,
parts including the response to crime and retribu-
Colombo, Sri Lanka tive theory of justice, the history of the criminal
e-mail: [email protected] justice system and retributive justice and the

284 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)
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
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.
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-
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.
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.
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.
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 probe 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.
CPC Act 15 of 1979 as amended by the CPC 18.4.4 Probation

(Amendment) Act No. 49 of 1985 has stipulated
the relevant provisions relating to Community Correctional programme and treatment of offend-
Service today. These provisions were repealed ers in Sri Lanka started functioning in the form of
and enacted in the Community Based Corrections Probation in 1956 through the promulgation of
Orders Act No. 46 of 1999 which presently lays Probation of Offenders Ordinance No. 42 of 1956
down legal provision for unpaid community ser- for both adults and the children. In 1960 the pro-
vice orders in Sri Lanka. According to the law bation system has been extended by appointing
prescribed by the said Act, unpaid community Probation Officers to all judicial districts in the
service order may be issued in lieu of fine which country. However, today probation is ordered
is less than three thousand rupees or in lieu of only against the juvenile delinquents.
imprisonment which is less than 2 years,19 taking
into consideration various factors including the
nature of offence and the character of the 18.4.5 Conditional Discharge
offender.20 Community-based correction orders
are a step away from a prison sentence, and are a Conditional discharge is one of the non-custo-
more successful form of punishment for minor dial measures implemented on the offenders in
offences from the corrective aspect, and a cheaper Sri Lanka. Section 306 (1) of the CPC Act, No.
alternative to short-term imprisonment. 15 of 1979, lays down the legal provisions for
There are three ways (types) of serving under conditional discharge. The Court may order
the unpaid community-based corrections, namely, conditional discharge after taking into account
community work corrections; special rehabilita- various factors, including the good character of
tion (programme) for drug offenders and work the offender (Peter (1945) 47 NLR 23; Fernando
under trained supervisors. Since these programmes v Excise Inspector, Wennappuwa (1949) 4 CLW
are not residential, offenders may participate in the 41), the age of the offender (Jayasena (1950)
activities while staying in the community. 52 NLR 183) and the nature of the offence
Factors or criterion such as age, social history (whether the offence is a trivial offence)
and background, medical and psychiatric history, (Gunasekara v Solomon (1923) 25 NLR 474;
educational background, employment history, Appuhamy v Wijesinghe (1945) 46 NLR 189;
previous convictions, financial circumstances, Krishnan v Sittampalam (1952) 54 NLR 19;
special needs, family background and other Gomas v Leelaratne (1964) 66 NLR 233;
income of the offender, courses, programmes, Podiappuhamy v Food and Price Control
treatment or other assistance that could be made Inspector, Kandy 1968 71 NLR 93). However,
available to the offender and benefit that he may the Sri Lankan judiciary imposes a conditional
gain from the assigned work are considered under discharge on adult offenders only for trivial
this programme. Lack of counselling and exclud- offences (Gunasekara v Soloman (1923) 25
ing women and children from the process could NLR 474; Appuhamy v Wijesinghe (1945) 46
be marked as demerits of the Sri Lankan system. NLR 18921; R. v Peter (1945) 47 NLR 23).
18.4.6 Suspended Sentencing

19
Section 5 (1) of Community Based Corrections Act No.
46 of 1999. As a result of the important proposals of the Law
20
Section 5 (2) of Community Based Corrections Act No. Commission in 1970, suspended sentence of
46 of 1999. The facts that the court should consider are the
nature and the gravity of the offence, age of the offender,
other relevant circumstances relating to the offence and
21
the offender, pre-sentence report and facilities available The court did not justify a conditional discharge where
for implementing such order. the offence was accompanied by the use of violence.
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).
18.4.7 Aftercare Service strenuous procedure particularly in a developing

country like Sri Lanka with limited resources and
In considering the aftercare service in Sri Lanka, lacking the update and new technologies. Though
it is hard to find any public agency which under- Sri Lanka has introduced some restorative justice
takes this as an organized group. But with the practices to the criminal justice system, those
assistance of Sri Lanka Prison Department some practices are not sufficient to meet the treatment
individuals including Buddhist Monks, Catholic of the offenders and crime problem. Therefore,
Priests and Nuns help the ex-prisoners who need the criminal justice system of Sri Lanka pays her
assistance according to their capacity. They pro- attention to introducing new methods of restor-
vide counselling service, food and clothing, help ative justice such as circles and conferencing.
them to find job opportunities, etc. According to Further, existing mechanism such as probation,
prison representatives, lack of a proper aftercare community-based correction and mediation
service system is one of the reasons for the should be strengthened for treatment of the
increase in the reconvicted/recidivist rate.29 offender in a productive manner.
Therefore, Sri Lanka should introduce these
aftercare service programmes to assist ex-prison-
ers who really need society’s help, to restart their References
lives after they return to society. Therefore, Sri
Lanka should pay attention to enacting necessary Ahmad Siddique. (1997). Criminology: Problems and
perspectives. Lucknow: Eastern Book Co.
statutory provisions to institutionalize this ser-
Barrett John. (2001). Balancing charter interests: Victims’
vice. However, what is most needed is the provi- rights and third party remedies. Toronto: Carswell
sion of increased opportunities for public Braithwaite John. (2002). Restorative justice and respon-
participation in practical correctional work sive regulation. New York: Oxford university Press
Cooray, L. J. M. (1971). Introduction to legal system in
through community volunteering efforts. Industry,
Ceylon. Colombo: Lake House Investment.
labour organizations and other civil organizations Daniel Van Ness and Strong Keren. (1997). Restorative
such as religious centres may formally organize justice. Cincinnati: Anderson Publication
and actively play a significant role in such social Dyneley Prince, Review. (2010). The Code of Hammurabi,
(1904) American Journal of Theology, 8(3), (July).
defence programmes.
USA: The University of Chicago Press.
Eglash Albert. (1977). Beyond restitution: Creative resti-
tution. In Joe Hudson, Burt Galaway (Eds.), Restitution
18.5 Conclusion in Criminal Justice. Lexington, MA: D.C. Heath and
company
Gobert James, Dine Janet. (1993). Cases and materials on
The criminal justice system and criminal law in criminal law. London: Blackstone Press Ltd
Sri Lanka have been transformed from retributive Hayley, F. A. (1972). The laws and the customs of the
justice to restorative justice due to the decisions Sinhalese or Kandyan Law. New Delhi: Navarang
Publishers.
taken by the Parliament and the Court. However,
Hogg Peter. (1992). Constitutional law of Canada. 3rd ed.
the attitude of the public towards punishment is Toronto: Carswell
still influenced by traditional retributive thoughts Mabbott, J. D. (1969). Punishment. In H. B. Action (Ed.),
where the offender should be treated harshly with The philosophy of punishment: A collection of papers.
London: Macmillan Co.
severe punishments through punitive approach.
Marckwardt, A. (1995). Cassidy Frederic and McMillan
The recidivism rate of country reflects upon this James, Webster Comprehensive Dictionary, Internat-
public thought and it further tells us the failure of ional Edition, Vol. I, London: Pioneer House
the treatment (reform) of the offender and retrib- Marshall, T. (2000). Handbook on Restorative justice,
10th UN Congress on the Prevention of Crime and the
utive concept. Since the phenomenon of treat-
Treatment of Offenders, April
ment of the offender is a complex exercise, it is a Marty Price, J. D. Fall. (2001). Personalizing crime:
Mediation produces restorative justice for victim and
29
offenders, dispute resolution magazine, Published by
Annual Prison Reports, Sri Lanka. the American Bar Association.
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.
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justice: The evidence. London: Smith Institute
An Overview of the Criminal Justice
System in Taiwan 19
Charles Hou
Justice, and the Coast Guard Administration. In

19.1 Introduction addition, the system includes the Prosecutor’s
office, the Courts, and the Correctional
This paper intends to explore the content and Institutions. On July 20, 2011, the Taiwanese
characteristics of the criminal justice system in Government created a new office, under the
Taiwan. We understand that there are four phases Taiwanese criminal system called the Agency
in the criminal justice system. It is firstly the role Against Corruption, and its function is to fight
of the police. The police play a major role as against the white-collar crime committed by the
gatekeepers to the criminal justice system, which high-ranking government officials.
is to refer an arrested suspect to the office of the This paper focuses its discussion only on the
prosecutors. The second stage is investigation traditional components of the justice system: the
and prosecution. This is a pretrial stage where the police, prosecutors, and judges. Other agencies
prosecutors would investigate the crime incident will not be covered here. The roles and functions
and decide if it involves any violation of the law. of the three agencies will be addressed along with
The prosecutors often cooperate with the judges their interactions. This paper also discusses the
if further detention is needed. The third stage is due process rights in Taiwan, which are less
the sentencing stage where the judge would make discussed in Asian societies.
a decision on a defendant. And the final stage is
imprisonment and treatment. The criminal justice
system exercises a formal social control mecha- 19.2 Police: Gatekeepers of the
nism on those who violate the laws. Criminal Justice System
The criminal justice system involves different
components and mechanisms so that the system The NPA is the headquarters for all the police
can function and operate well. Moreover, the sys- agencies, and it takes the responsibility of all the
tem varies in different social and cultural settings. operations of Taiwan police forces.1 According to
In Taiwan, the criminal justice system is consti- the law in Taiwan, the functions of the police are
tuted by the following agencies: the National to maintain public order, to prevent crime and
Police Agency (NPA) of the Ministry of Interior, disorder, to preserve social safety, and to enhance
the Investigation Bureau of the Ministry of
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.

298 C. Hou
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.
Legal cases are divided into three categories in

19.3 Prosecutors: Criminal Taiwan, which include civil, criminal, and admin-
Investigations istrative cases. The prosecutors can handle crimi-
nal cases only. They do not have the right to
Prosecutors in Taiwan are public administrators, involve in civil or administrative cases.
integrated with the broader execution branches, Theoretically, prosecutors take charge of crimi-
the Execution Yuan. Because of this administra- nal investigations. However, often they do not
tive nature, prosecutors are subjected to the apprehend criminal cases proactively. The police
supervision and management of their supervi- and the investigation bureau along with other
sors. The Taiwanese prosecutors’ office has three crime control agencies refer the arrested suspects
levels, the district public prosecutors office, the to the prosecutor’s office. Only serious crimes,
Taiwan High Prosecutors Office, and the Supreme white-collar crimes, or crimes committed by
Prosecutors Office. There is a head for each of high-ranking governmental officials would
the district public prosecutors office and there is receive prosecutors’ interest and action to
one head in both the Taiwan High Prosecutors investigate.
Office, and the Supreme Prosecutors Office. The However, regardless of whether the criminal
heads take responsibilities for daily operations cases are actively or passively in the hands of the
for their individual offices. However, the head of prosecutors, they would examine and weigh the
the low-level prosecutor’s office has to respond to evidence of the criminal offenses. If the offenses
the calls from the head of the high-level prosecu- constitute a violation of the criminal codes, the
tor’s office. With this, the head of the Supreme prosecutor would formally place a charge against
Prosecutors Office, the Prosecutor General, the suspect. In this case the prosecutor would
enjoys the largest power of prosecutions. Among become the plaintiff, representing the state, and
all his powers, he has the direct power of criminal ask judges to indict the suspect.
investigations on crimes committed by the presi- According to the laws, the intake of criminal
dent, vice president, and other high-ranking cases to the courts could be the prosecutors or it
officials in Taiwan. There is another power that could be the general public. If prosecutors find a
no one else in the country has, which is the right violation of the criminal code from the defendant,
of special appeal on criminal cases when crimi- he or she would bring the case to the court, which
nal cases are already finalized in the courts. This we call a public accusation. However, the laws
power is often used by the Prosecutor General for allow the general public who are the criminal vic-
death penalty cases. He could request a retrial to tims to bring the offenders to the prosecutors. We
ensure that the death penalty made by the previ- call this a self-prosecution. If it is a self-prosecu-
ous courts is justifiable. tion, the prosecutor is not required to appear in
There are about 1,200 district prosecutors, the court to act as a plaintiff.
170 high prosecutors, and 20 supreme prosecu- The Prosecutor General has the legal right to
tors in Taiwan. Like prosecutors in many other exercise a special appeal and bring the case to the
countries, the prosecutors in Taiwan bring the highest court for a retrial. In 2010, there were 351
accused criminals to the court in the name of a special cases appealed by the Prosecutor General
country so that the justice can be achieved. and 278 of them changed the verdicts, signifying
Prosecutors play the key roles for criminal inves- that the Prosecutor General is very careful and
tigations. They investigate criminal cases that also very functional about the use of his or her
are referred from the police office. And they can appeal right. However, it also justifies that justice
also proactively investigate criminal cases. is not handled fairly in many of the cases in the
Furthermore, they have the authority to lead the courts. Incorrect verdicts could be found in the
police officers and the agents of the criminal court system.
investigation bureau in the conduct of criminal Prosecutors are very busy in Taiwan, especially
investigations. those at the first level, the district prosecutors.
302 C. Hou
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
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
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, concerning 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.
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
penal policy and practice, with special attention

20.1 Introduction being paid to the drug issue, including related
legislation and the distinction that is now made
Thailand is unique amongst its Southeast Asian between drug users as opposed to drug produc-
neighbors in never having been colonized and in ers/traffickers. It is also demonstrated how the
remaining to this day a constitutional monarchy. A hard line approach to the latter has affected the
fledgling democracy prone to political instability caseload of core criminal justice agencies, in par-
and with a long tradition of resorting to coup d’état ticular the Department of Corrections and the
to resolve political stalemate or tension, over the Department of Probation.
past several decades the nation has witnessed enor- In drawing attention to and being objectively
mous social and economic change. All these and critical of several aspects of the Thai criminal jus-
other factors have contributed to the character of tice system, including the weaknesses in databases
the country’s criminal justice system as it is today, and the policy/practice dichotomy referred to above,
including the existence of the right of prisoners the authors hope to make a small contribution to
to claim and benefit from royal pardons and instilling awareness of the constant need for
fluctuations in successive governments’ penal policy. improvements in the system in order to slowly bring
Working within the acknowledged limitations it on a par with international norms and standards.
imposed by flaws in the recording and maintaining
of statistics in Thailand, the chapter aims to high-
light the country’s current crime trends, punitive 20.2 Current Crime Situation
measures, and criminal justice reform A particular
focus is on the links—or discrepancies—between The primary objectives of this section are to dem-
onstrate the types of crime which Thailand has
faced in recent years through the workload data
L.D. Junlakan
Consultant, Chiang Mai, Thailand of relevant criminal justice system agencies. This
e-mail: [email protected] sets the foundation for later discussion of the
Y. Boriboonthana, Ph.D. reform of Thailand’s criminal policy and the
Department of Probation, Research and Development criminal justice system. At the outset it has to be
Center, Ministry of Justice, Bangkok, Thailand stated that a holistic approach has not yet been
applied to the management of crime-related data
A. Sangkhanate, Ph.D. (*) in Thailand. Therefore, currently the best
Justice Research and Development Institute,
approach that can be taken is to rely on individual
Office of Justice Affairs, Ministry of Justice,
Bangkok, Thailand agencies’ data. As the authors are well aware that
e-mail: [email protected] dealing with secondary data might have a negative

310 L.D. Junlakan et al.
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
83,414 83,001 78,169

90,000
71,272 65,714
60,000
40,061 44,106
30,619 32,178 36,827 30,088
28,691 30,578 25,886 26,338
30,000
20,156 20,970 23,352 25,602 22,286
0
2006 2007 2008 2009 2010
Drugs Gambling Prostitution Weapon Property
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.
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.
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
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
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
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.
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
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)
Table 20.4 Number of persons in custodial institutions (as of 1 February 2012)

Male Female Total %
1. Convicts 142,687 24,577 167,264 73.44
2. Remandees 49,185 8,752 57,937 25.44
2.1 Awaiting appeal 25,472 3,947 29,419 12.92
2.2 Awaiting trial 9,210 1,804 11,014 4.84
2.3 Awaiting investigation 14,503 3,001 17,504 7.69
3. Juveniles ordered by the Court 373 13 386 0.17
4. Relegated persons 7 0 7 0.00
5. Detainees 2,004 152 2,156 0.95
Total 194,256 33,494 227,750 100
Source: Department of Corrections (2012)
of the Narcotic Addict Rehabilitation Act 2002; Female

and the use of alternatives to imprisonment to 33,494 (15%)
help overcome overcrowding. From 2008 the
graph starts to rise again as a result of the reintro-
duction of more stringent policies together with a
tendency to impose very long sentences on major
drug offenders. Nevertheless, in 2010 a large
Male
number of prisoners were released under Royal 19,4256
Pardons, granted for qualified prisoners to cele- (85%)
brate the 60th Anniversary of HM King
Bhumibhol’s Coronation: this somewhat allevi- Fig. 20.5 Prison population classified by gender (as of 1
February 2012). Source: Department of Corrections (2012)
ated overcrowding. However, the most recent sta-
tistics show a further increase in the prison
population, mainly due to a renewed rise in the
number of convicted drug offenders. 73.44% convicts; 25.44% remandees; and 1.12%
As of 1 February 2012, 227,750 individuals others (Table 20.4). In line with other prison sys-
were being kept in custody across the country, tems, the majority (85%) of the prison population
with the breakdown of their legal status being is male (Fig. 20.5). The evidence, however, shows
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
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.
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.
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.
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 disas “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
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 administration, 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
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.
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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problems in criminal justice research: Workshop
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ing the “Dark Figure” of crime, Annals of the Pepper, J. V., Petrie, C. V., Sullivan, S. (2009).
American Academy of Political and Social Science, Measurement error in criminal justice data. In A.
(Vol. 374, pp. 1–15). Thousand Oaks, CA: Sage Piquero & D. Weisburd (Eds.), Handbook of quantita-
Publications. tive criminology, (pp. 353–374) Springer.
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Lekhamas, L. (2010). The return on investment of in the massage parlor. http://dataverse.dvn.utcc.ac.th/
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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
21.1 Introduction 2008). Closer to Singapore, the establishment of

the ASEAN Commission on Promotion and
Protection of Rights of Women and Children in
The international recognition of violence against 2010 portends greater efforts towards the elimi-
women as human rights and health-related issues nation of violence against women in Singapore
of priority began in the 1990s. Key events include (ASEAN 2010).
the Declaration on the Elimination of Violence However, unless there is systematic data col-
Against Women adopted by the United Nations lection on the types and extent of violence against
General Assembly in 1993 (United Nations women, it is not possible to have an accurate
General Assembly 1993), the appointment of a evaluation of the effectiveness of international
special rapporteur on Violence Against Women and national strategies tackling such violence.
by the Commission on Human Rights in 1994 Different types of violence may also impact
(United Nations Commission on Human Rights groups of women in different ways, leading them
1994),1 the resolution to “combat all forms of to decline assistance or redress. It is difficult to
violence against women” as one of the Millennium know the true prevalence of violence against
Goals by the United Nations General Assembly women, particularly if it is violence committed
in 2000 (United Nations General Assembly by a husband or an intimate partner since these
2000), discussion of the in-depth study on vio- forms of violence are seldom reported. In a 2005
lence against women at the United Nations study published by the World Health Organization
General Assembly in 2006 (United Nations based on a survey of 24,000 women in ten coun-
General Assembly 2006), and more recently, the tries, it was found that between 55% and 95% of
launch of the campaign to end violence against women who had been physically abused by their
women (UNiTE) by the United Nations Secretary- partners had never sought help from formal ser-
General Ban Ki-moon in 2008 (United Nations vice providers (such as the police, hospitals,
social services, or shelters) or persons in a posi-
tion of authority (such as local or religious lead-
1
Under this mandate, fact-finding country visits and annual ers) (Garciá-Moreno et al. 2005).
reports are submitted, see http://www2.ohchr.org/english/
There is limited knowledge about the true
issues/women/rapporteur/ (last accessed 2 July 2010).
prevalence of violence against women in
W.-C. Chan, Ph.D. (*)
Singapore as well. Police data that is publicly
National University of Singapore,
Singapore, Singapore available do not disaggregate “crime against
e-mail: [email protected] the person” into gender or the type of crimes

330 W.-C. 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
Table 21.1 Profile of respondents

Percentage of respondents Percentage of Singapore
(weighted N) population1
Age group
18–24 years 13.4% (268) 9.2%
25–29 years 11.0% (221) 10.9%
30–34 years 10.9% (218) 11.8%
35–39 years 10.5% (211) 12.4%
40–44 years 10.5% (210) 12.0%
45–49 years 10.1% (202) 12.2%
50–54 years 8.8% (177) 11.3%
55–59 years 7.5% (150) 9.1%
60–64 years 5.3% (106) 6.6%
65–69 years 12.1% (243) 4.6%
Ethnicity
Chinese 73.1% (1,467) 76.1%
Malay 10.8% (216) 12.2%
Indian 8.1% (163) 8.4%
Others2 7.9% (159) 3.3%
Type of housing
HDB 1- and 2-room flats3 6.2% (125) 2.7%
HDB 3-room flats 17.8% (358) 18.0%
HDB 4-room flats 37.5% (752) 34.5%
HDB 5-room and executive flats 21.5% (431) 27.7%
Condominiums and private flats 11.6% (233) 9.3%
Landed property 5.3% (106) 6.5%
Others 0% (0) 1.1%
Monthly household income4
Below $1,000 7.2% (145) 9.7%
$1,000 to $1,999 11.2% (225) 10.6%
$2,000 to $2,999 17.9% (358) 10.5%
$3,000 to $3,999 15.5% (310) 10.2%
$4,000 to $4,999 8.1% (162) 8.9%
$5,000 to $5,999 7.0% (140) 8.3%
$6,000 to $9,999 12.6% (252) 20.3%
$10,000 and over 8.3% (167) 21.4%
No income 0.5% (11) 0%
Don’t know/can’t remember 6.9% (138) 0%
Refused/no answer 4.8% (97) 0%
1
Extracted from Department of Statistics 2009a and Department of Statistics 2009b. Percentages for age group and
ethnicity are based on the female Singapore citizens and Singapore permanent residents aged between 20 and 69 years
old, but the percentages for type of housing are based on male and female Singapore citizens and Singapore permanent
residents in this age range
2
The ethnic group of “Others” is defined in official statistics as those who do not fall within the categories of Chinese,
Malay, or Indian. This diverse group includes Arabs, Eurasians, Japanese, and so on
3
HDB refers to the Housing and Development Board which is responsible for public housing in Singapore
4
The average monthly household income is $7,440 for 2007/2008 (Department of Statistics 2009b)
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.
Fig. 21.1 Respondents’

Costa Rica 60%
lifetime rate of any
violence (at least once) Czech Republic 58%
Australia 57%
Mozambique 55%
Denmark 50%
Switzerland 39%
Poland 35%
Hong Kong 21%
Philippines 17%
Singapore 9%
Fig. 21.2 Respondents’ Physical violence Sexual violence

lifetime rates of physical or
sexual violence (at least Czech Republic 51%
35%
once) 48%
Australia 34%
Mozambique 48%
24%
Costa Rica 47%
41%
Denmark 38%
28%
Poland 30%
17%
Switzerland 27%
25%
Philippines 15%
6%
12%
Hong Kong 14%
Singapore 7%
4%
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
Fig. 21.3 Respondents’

Mozambique 22%
1-year rate of any violence
(at least once) Costa Rica 15%
Czech Republic 14%
Australia 10%
Poland 6%
Philippines 6%
Denmark 5%
Hong Kong 4%
Singapore 3%
Switzerland 2%
Fig. 21.4 Respondents’ Physical violence Sexual violence

1-year rate of physical or
sexual violence (at least Mozambique 17%
9%
once) Czech Republic 12%
5%
Costa Rica 11%
7%
Australia 8%
4%
Poland 5%
2%
Philippines 5%
2%
Denmark 4%
2%
Hong Kong 2%
3%
Singapore 2%
1%
Switzerland 1%
1%
violence (44.9% of victims of sexual violence 12 months is shown below as compared to

experienced repeated victimisation). the profile of all respondents in survey (see
Table 21.2). It can be seen that there is an over-
representation among respondents who experi-
21.3.4 Respondents Who Experienced enced violence in the last 12 months of those
Violence in the Last 12 Months who are (1) aged between 30 and 39 years old;
(2) Malays; (3) living in HDB 1 and 2 room flats;
The profile of 53 respondents who have experi- and (4) those who have university or postgradu-
enced physical or sexual violence in the last ate education.
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)
21.3.5 Severity and Perception 3. If the respondent was physically injured,

of Incident whether she needed medical care (even if she
did not receive it)
The respondents were asked to recall the most 4. Whether the respondent considered the inci-
recent incident and their responses were categor- dent as very serious at the time
ised according to whether the incident involved a 5. Whether the respondent used alcohol and/or
partner with whom they have (or had) a physi- medication to cope
cally intimate relationship or not. Such intimate 6. Whether the respondent regarded the incident
partners include current or previous husbands as a crime or a wrong
and boyfriends, while non-intimate partners It was found that incidents involving intimate
include strangers, colleagues, friends, and family partner victimisation were invariably considered
members such as a father or uncle. to be more serious than non-intimate partner vic-
Different measures were used to determine the timisation on the different measurements used.
severity of the incident: However, victims of intimate partner violence
1. Whether the respondent felt that her life was were less likely to regard the incident as a crime
in danger or a wrong as compared to victims of non-inti-
2. Whether the respondent was physically injured mate partner violence (see Table 21.3).
336 W.-C. Chan
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)
Table 21.4 Reporting of incident

Percentage of respondents Percentage of respondents who
who experienced intimate experienced non-intimate partner
partner victimisation (weighted N) victimisation (weighted N)
Reported incident 25.3% (25) 21.6% (22)
Did not report incident 71.7% (71) 77.5% (79)
Don’t know/can’t remember 0% (0) 1.0% (1)
Refused/no answer 3.0% (3) 0% (0)
Table 21.5 Reasons for not reporting incident to police

Percentage of respondents Percentage of respondents
who experienced intimate who experienced non-intimate
partner victimisation partner victimisation
Dealt with it myself/involved a friend or a family 38.1% 24.5%
member
Too minor/not serious enough 20.3% 23.8%
Did not want anyone to know 11.0% 10.5%
Did not want offender arrested/in trouble with the police 8.5% 3.5%
Shame/embarrassment/thought it was her fault 5.9% 7.0%
Did not think the police could do anything 4.2% 9.1%
Fear of offender/fear of reprisals 3.4% 4.9%
Did not think the police would do anything 1.7% 5.6%
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”.
Table 21.6 Actions taken by the police

Percentage of respondents Percentage of respondents
who experienced intimate who experienced non-intimate
partner victimisation partner victimisation
Took a report 43.1% 53.1%
Gave a warning 21.6% 9.4%
Suggested services 11.8% 12.5%
Followed through with the court procedures 5.9% 6.3%
Arrested the man 2.0% 6.3%
Police did nothing 0% 6.3%
Brought charges against man 12.0% 18.2%
Table 21.7 Satisfaction with the police

Percentage of respondents who experienced Percentage of respondents who experienced
intimate partner victimisation (weighted N) non-intimate partner victimisation (weighted N)
Very satisfied 12.0% (3) 13.6% (3)
Satisfied 64.0% (16) 27.3% (6)
Dissatisfied 8.0% (2) 27.3% (6)
Very dissatisfied 16.0% (4) 22.7% (5)
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
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
21.5.3 Severity and Perception reported in other IVAWS participating countries

of Incident (the Czech Republic, Denmark, Hong Kong, and
the Philippines) where less than a quarter of vic-
In common with many of the IVAWS participat- timisations were reported to the police (Johnson
ing countries (Johnson et al. 2008), it was also et al. 2008).
found in Singapore that although violence Where the incident was reported to the police,
inflicted by an intimate partner was more serious it was found in the present survey that those who
and, in more than four in ten of the cases, life- were victimised by an intimate partner are more
threatening, fewer considered it to be a crime or likely to be satisfied with the way the police han-
a wrong than those involved in non-intimate dled the case. This may appear at first sight as
partner victimisation who may have less serious inconsistent since those who were victimised by
injuries. This shows that many women may still intimate partners were more likely not to regard
perceive violence committed by an intimate part- the incident as a crime or a wrong. A possible
ner as a “family” or a “private” matter, leading explanation to the survey result is that those who
them to endure serious injury for many years. have been victimised by an intimate partner had
This is supported by the finding in the survey to overcome social conditioning that the incident
that the most common reasons why victimisation is “private” or that it is “shameful” to tell on a
by an intimate partner was not reported are the loved one, but once that is done, the victim is
following: (1) “dealt with it myself/involved a relieved that she did so, even though the most
friend or family member”, (2) “too minor/not common response given may be, in general, inef-
serious enough”, and (3) “did not want anyone to fective ones such as “taking a report”, “giving a
know”. These were also the common reasons warning”, or “suggesting services”. Since vio-
reported by other IVAWS participating countries lence committed by an intimate partner is often
(Johnson et al. 2008). downplayed in society, the satisfactory rating for
Among the IVAWS participating countries, it the police is also not affected by the small num-
was also found that even though a woman may ber of offenders who had criminal charges
perceive the incident as “serious” or a “crime”, it brought against them. Such victims may be of the
was not always followed by a decision to report it view, rightly or wrongly, that there is very little
to the police. Many other factors may influence that can be done in their case. What may be most
the decision whether to report the incident to the important to them is that they were listened to,
police or not, including the availability of other taken seriously, cared for, and supported, but not
resources to help her cope with the situation. necessarily having the offender arrested or pun-
Education to improve awareness of the unac- ished (Fleury 2002; Johnson 2006).
ceptability of violence regardless of the relation- On the other hand, those who have been vic-
ship between victims and offenders must be timised by non-intimate partners may feel more
reinforced, as well as enhancement of the crimi- indignant at their violation or fearful of a repeat
nal justice system’s ability to provide an effective incident, and expect the police to be more active
response to the wish of victims which may often in their intervention—even though this may not
be to stop the violence without necessarily hav- be always possible if the incident was committed
ing the offender arrested or punished. by a stranger who cannot be properly identified
subsequently. Further research will be needed to
examine the extent to which the objectives of the
21.5.4 Involvement of Police and female victims and the police can, and should, be
Assessment of Police Response aligned together.
More women being satisfied with the police in
The reporting behaviour of those who were vic- situations of intimate partner violence than for non-
timised by intimate partners and non-intimate intimate partner violence was also found in 3 of the
partners is similar. This is similar to the behaviour IVAWS participating countries: Mozambique, the
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
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first presented at the inaugural meeting of the Asian from http://app1.mcys.gov.sg/ResearchRoom/Research
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in a Global Context—Challenges and Prospects, 17 to 20 Ministry of Community Development, Youth and Sports.
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Assistance Sought in Violence Cases, 1995–2008.
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Victims of Crime in Taiwan
22
Hsiao Ming Wang
scope of victimization in Taiwan is presented in

22.1 Introduction three features, including individual, household,
and commercial. The changing service and pro-
Victimology as a new area in criminology cedural rights for victim are illustrated from three
emerged in the 1970s but interest in crime vic- prospects: victim compensation, victim advocate,
tims is by no means new (McShane and Williams and victim right. The content of main focus of
1992). In 1970 victimization first time became a this chapter led to the discussions of two future
research topic of criminologists in Taiwan. trends: victimization of new residents in Taiwan
However, “the victimization issue in Taiwan and a tertiary crime victim caused by using CCTV
seems to be underdiscussed and investigated” as a self-protection measure. Finally, this chapter
(Kuo et al. 2009, p. 461). To shed some light on concludes that many criminologists in Taiwan
this issue, this chapter briefs the background of have dedicated them to the new area of victimol-
victimology as well as looks at the development ogy and the victims’ right in Taiwan seems con-
of victimization and movement of victims’ right siderably improving after the enactment of the
in Taiwan by reviewing related literatures and Crime Victim Protection Act in 1998.
statistics. In the section of background, a brief
history of conceptual framework of victimology
is reviewed, practical and theoretical issues in the 22.2 Background
relationship to the formal criminal justice system
are discussed, and the potential and limitations of 22.2.1 A Brief History of the Principles
“alternatives” to criminal justice are also and Conceptual Framework
addressed. The main focus of this chapter con-
sists of four angles in Taiwan: unfolding the role The concept of victim dates back to prehistoric
of victim surveys in generating criminological cultures such as the ancient Hebrews (Huang and
interest in victims, describing the nature and Zhang 2011, p. 2). The original meaning of vic-
scope of victimization, tracing the role of victim tim was rooted in the idea of sacrifice (Genesis
movements, and identifying changing service 31:54) or scapegoat (Leviticus, 16:8) (New
and procedural rights for victim. The nature and American Standard Bible 1997). Over the centu-
ries, the word victim came to have additional
meanings. Today, the concept of victim includes
any person who experiences injury, loss, or hard-
H.M. Wang, Ph.D. (*) ship due to any cause; and crime is one of the
University of Houston-Downtown, Houston, TX, USA causes (Fattah 1991). In this chapter, the focus is
e-mail: [email protected] on crime victims.

344 H.M. 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
(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
CRC-NCCU crime victimization survey, 11.3% of Age

respondents indicated being victimized in larceny Adults (30–54 years old) are more likely than
with an average loss of $2,485 in the first half year other age groups to be the victims of larceny
of 2009. In the second half year of 2009, 16.8% of (54.62%), assault (48.57%), and snatch (42.67%).
respondents indicated being victimized in larceny However, the proportion of young adults and
with an average loss of $3,327. Comparatively, the youths being victims of snatch (42.15%) is very
prevalence of larceny between these two nation- close to that of adults.
wide crime victimization surveys in Taiwan is
about the same. The results are also consistent with Education
that of National Crime Victimization Survey in the People with higher education level (high school
United States. According to Klaus (2004), theft and above) are more likely than their lower edu-
(10%) was the most frequently reported crime in the cation counterparts (middle school and below)7
year 2002. However, the damage figure of CRC- to be the victims of larceny (78.24%), assault
NCCU is much higher than that of TACVS. A pos- (71.51), and assault (70.82%).
sible reason is that the unit of analysis of
CRC-NCCU is all individuals in a specific house- Marriage Status
hold, while that of the TACVS is individuals. Married or cohabited people are more likely than
It is worth to note that about 40% of victims of their not married counterparts (never married,
CRC-NCCU chose not to report crimes to the police widowed, separated, or divorced) to be the vic-
for the reason that “it won’t do anything good.” The tims of larceny (57.09), assault (50.73%), and
CRC-NCCU further provided estimation of total assault (50.54%).
loss of larceny in Taiwan in 2009. There were
7,720,983 households in Taiwan in June 2009 Nighttime Activity
(National Statistics 2011b). It is estimated that in People engaged in nighttime activities (going out
the first half year of 2009 the total damage for lar- twice and above per week) are more likely to be
ceny was $2.17 billion. There were 7,805,834 the victims of larceny (63.27%), assault (59.87%),
households in Taiwan in December 2009 and snatch (56.34%).
(National Statistics 2011b). It is estimated that in
the second half year of 2009 the total damage for 22.3.2.2 Household Victimization
larceny was $2.74 billion. The 2010 TACVS also examined household vic-
Prior research suggested that demographic timization of residence larceny, motorcycle theft,
characteristics distinguish victims and non-vic- motor vehicle theft, and fraud happened in 2009
tims. The 2010 TACVS presented a general pic- (National Taipei University 2010). The phone
ture of individual victim, including gender, age, survey results indicated that residence larceny is
education, marriage status, and nighttime activity the most prevalent offense (3.72%), followed by
(National Taipei University 2010). motorcycle theft (2.16%), fraud (1.57%), and
motor vehicle theft (.78%). The motor vehicle
Gender theft victims are most likely to report crimes to
Males are more likely than females to be the vic- police (97.14%), followed by motorcycle theft
tims of larceny (54.27%) and assault (63.53%) (90.26%), fraud (54.17%), and residence larceny
but not snatch (44.06%). (41.49%) victims. In other words, residence lar-
cenies are most likely to happen in Taiwan but
victims are least likely to report this kind of
crimes to police. The main reason why people do
6
The CRC-NCCU conducted biannual crime victimiza-
tion surveys in July 2009 and January 2010. The survey in
7
July 2009 examined the victimization in the first half year Taiwan put 9-year compulsory education into practice in
of 2009, while the survey in January 2010 investigated the 1968. Since then, each student is required to complete at
victimization in the second half year of 2009. least middle school education (7–9 grades).
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).
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
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
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
security managers and police officers. The figures

of police were much higher than those of their
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Child Protection in Asia
23
Mari Hirayama
23.1 Introduction within private sphere (e.g., abuse against children

by their family members) have been considered
to be less serious. Since 1970s, feminist cam-
Children are the most vulnerable of human beings paigns have been playing a great role in family
in many ways. There are many risks for children violence, and many laws regarding family vio-
outside their homes. Children are, however, also lence have been enacted in many countries. In
victimized by their family members. When abuse most western countries, it was around late 1970
and crime happen in the private sphere, inside the when laws to protect children from being abused
family, it is very difficult to be discovered. Also, were enacted. It takes more time, however, in
it is difficult for law enforcement to intervene in many Asian countries to let these movements
abuse within the family. This tendency may be happen, and the legality of “reasonable chastise-
stronger in Asian countries where the society ment by parents” is still deeply rooted not only in
respects family decisions in what happens within general public sentiments but also in law enforce-
the family (Neary 2002). Asian countries are ment. In most Asian countries, it was around late
home to the largest share of the children in the 1990s–2000 when laws to protect children from
world. Asian countries are also where rapid eco- being abused were first enacted (for example, the
nomic development is happening. It is also true Yokohama Conference Report 2002).
that children are often the last parties who can
enjoy this prosperity. They are often exploited in
many ways. In this first section, the laws and 23.2.1 Child Abuse in Japan
legal networks to prevent child abuse, commer-
cial sexual exploitation of children, and child 23.2.1.1 How the Law Has Changed to
prostitution in Asian countries are explained. Prevent Child Abuse Cases
Child abuse is becoming a more and more serious
problem in Japan (Nishizawa 2007). The number
23.2 Child Abuse of child abuse cases reported to the Child
Guidance Centers (CGC) during 2010 was about
It is quite common that in many countries, focus 55,000, and the number is increasing every year.
has mainly been put on crime against children One of the reasons for this is, of course, that the
which occurred in the public sphere, and crimes society has become more aware of the problem in
these 10 years. At the same time, it should be also
stated that the family style has been changing in
M. Hirayama, Master (*)
Hakuoh University, Oyama, Japan Japan. The family style has been bipolarized after
e-mail: [email protected] around late 1990s. Some women get to have their

360 M. 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
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
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
For example, a man works an average of 1,212 h

24.1 Introduction in a year, compared to a pair of bullocks who
work 1,064 h, whereas a woman works 3,485 h
Although women constitute about half of the (Shiva 1991). In addition, women receive lower
total population (48%) in India and are the prin- returns for their labor due to gender discrimina-
cipal providers of care and support to families, tion. Such discrimination, according to the
their status is not equal to men. This has not National Commission on Women, contributes to
always been the case. For example, women in displacement, devaluation, and disempowerment
ancient India enjoyed equal status with men in of women, which increases the incidence of rape,
all fields of life, including education, whereas female feticide, trafficking of women, and other
during the medieval period, the women held a forms of violence.
subordinate status. In modern India, women have Due to their secondary status in the Indian
slowly gained status but not in all spheres. society, women are subjected to various forms of
Various social indicators show that women’s sta- violence. Of all the forms of violence, domestic
tus is lower than their male counterparts. violence has emerged as one of the most serious
Although the censuses recorded between the problems faced by women. Across the globe,
2001 and 2011 show improved literacy rate for criminal justice agencies recognize the problem
women, females still represent only 43% of all of domestic violence as a serious crime against
literates (n = 778,454,120) (Government of India women. In India, however, it is largely viewed as
2011). Further, in rural India, women are reported a family matter—neighbors, friends, and even
to be 55–65% of the total labor force (National relatives of victims rarely interfere in situations
Commission for Women n.d.). One report of domestic violence.
indicated that in some rural areas women put in
more hours than a pair of bullocks in the field.
24.2 Status of Women in India:
An Overview
S. Kethineni, Ph.D. (*)
Department of Criminal Justice Sciences, During the Vedic period (1500–500 b.c.e.),
Illinois State University, Campus Box 5250, Normal, IL women had considerable freedom in the family
61790-5250, USA
and society. The Rig Veda, one of the four Vedas,
indicated that women were equal to men in terms
M. Srinivasan, Ph.D.
of access to and capacity for the highest knowl-
Department of Criminology, University of Madras,
Chepauk, Chennai, 600 005, India edge of Brahma (the Hindu God of creation). The
e-mail: [email protected] Veda contains hymns, which were revealed even

368 S. Kethineni and M. 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
Table 24.1 Crimes against women, 2005–2009

Growth rate Growth rate Growth rate
Incidence of of IPC crimes Incidence of of SLL crimes of IPC and SLL
crimes against against crimes against against crimes against
S. no. Year women (IPC) women (%) women (SLL) women (%) Total women (%)
1 2005 143,523 – 12,030 – 155,553 –
2 2006 154,158 7.4 10,607 –11.8 164,765 5.9
3 2007 174,921 13.5 10,391 –2.0 185,312 12.5
4 2008 186,616 6.7 9,240 –11.1 195,856 5.7
5 2009 194,835 4.4 8,969 –3.0 203,804 4.1
(Source: National Crime Records Bureau 2011)
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
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%)
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)
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%).
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
women), nonspousal violence, and violence

24.4 Domestic Violence: Its Nature related to exploitation (UN 1995a). Though there
and Scope are various definitions for domestic violence,
there is a need for a broad yet focused definition,
Women and girls are subjected to physical, sex- because the definition shapes the response. For
ual, and psychological abuse, irrespective of instance, the type of response from the commu-
income, class, and cultural background. Such nity (e.g., providing support services or need for
violence is one of the crucial social mechanisms the legal reform) is shaped by the community’s
by which women are forced into a subordinate understanding of what constitutes domestic vio-
position to men (United Nations [UN] 1995a). lence and whether it is to be conceptualized as an
The UN General Assembly adopted the intrafamily conflict or a criminal violation of
Declaration on the Elimination of Violence rights. The definition of domestic violence by
Against Women (DEVAW) in 1993. The DEVAW law is critical because it defines standards and
defines violence against women as any act of thus influences the broader social perception of
gender-based violence that results in, or is likely the problem. Thus, the elements that need to be
to result in, physical, sexual, or psychological considered include the boundaries of the relation-
harm or suffering to women, including threats of ship between the perpetrator and the victim, the
such acts, coercion, or arbitrary deprivation of norms of acceptable behavior, and the specific
liberty, whether occurring in public or private life acts that constitute violence (International Center
(UN 1993). In light of this broad definition, vio- for Research on Women 1999).
lence against women in the family and in the gen- According to a report by the National Family
eral community, and violence perpetrated by the Health Survey ([NFHS-2] 2000, cited in Sunny
State, can also be included. 2003), inequality and violence occur throughout
Violence against women in a family setting India. The report further states that 68% of the
may include battering, sexual abuse of female women in the survey reported that they needed
children in the household, dowry-related vio- permission from their husbands or in-laws to go
lence, marital rape, female genital mutilation to the market, and 76% had to seek the consent of
(and other traditional practices harmful to their husbands before they could visit friends or
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
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
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
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
to decide cases such as divorce, disputes between Lawyers Collective Women’s Rights Initiative. (2009).
women and their in-laws, complaints about hus- Third monitoring and evaluation report, 2009 on the
Protection of Women from Domestic Violence Act, 2005.
bands’ infidelity, domestic violence, rape, and New Delhi, India: Concept Information Systems.
dowry harassment. In addition to serving as a Lawyers Collective Women’s Rights Initiative. (2010).
mediating body in which the parties must agree Staying alive: Fourth monitoring and evaluation report
to abide by the nari adalat’s decision, the nari 2010 on the Protection of Women from Domestic
Violence Act. 2005. Accessed 31 July 2011, from http://
adalat also ensures that the decision is imple- www.unifem.org.in/PDF/Lawyer%20collective.pdf.
mented (Purushothaman 2011). In the future, a Menon, M. (2004). Victim compensation law and crimi-
combination of formal legal protection, enforce- nal justice: A plea for a victim orientation in criminal
ment agencies, and informal courts should serve justice. In K. I. Vibhute (Ed.), Criminal justice: A
human rights perspective of the criminal justice pro-
to protect the rights of women in India. It remains cess in India (pp. 362–369). Lucknow, India: Eastern
to be seen if the combination of these systems Book Company.
will be able to assist victims of domestic violence National Commission for Women in India. (n.d.).
and provide the necessary protection to victims Agricultural sector in India. Accessed 20 July 2011,
from http://ncw.nic.in/pdfreports/Impact%20of%20
of domestic violence. WTO%20Women%20in%20Agriculture.pdf.
National Crime Records Bureau. (2011). Crime in India,
2009. New Delhi: Ministry of Home Affairs,
Government of India.
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Restorative Justice in the Asia
Pacific Region: Acting Fairly, 25
Being Just
Brian Steels and Dot Goulding
Many jurisdictions now use the term “restor-

25.1 Introduction ative justice” to incorporate varying degrees of
restorative processes and practices, sometimes
The origins of Restorative Justice are often con- redefining the term to suit their social and political
tested. Whilst the concept of Restorative Justice goals. The United Nations and Council of Europe
is often attributed to Judeo-Christian beliefs and have suggested that restorative justice processes
values, it is also claimed that it has its genesis become an integral part of the response to both
within First Nation and Indigenous communities. juvenile and adult offending. Although it is still
Even as there may be truth in the fact that restitu- considered by some as an emerging social move-
tion, reparation and apology had temporal and ment, local, state and national governments often
spiritual connotations among families and early see an advantage in including restorative justice in
communities in Europe, historically, violence at their criminal justice systems. Braithwaite (2002)
individual, local and national levels was also points to the UN Declaration (1985) as adopted by
often the order of the day. A quick worldwide the General Assembly in 1985, which covers many
historical examination demonstrates that both aspects of restoration. The Working Party on
violence and peacemaking have shaped the over- Restorative Justice adopted the Marshall (1996)
all human experience. In short, human beings are definition of restorative justice:
often, at one time or another, both conquered and Restorative justice is a process whereby all the par-
conquerors. This binary of peace and violence is ties with a stake in a particular offence come
the starting point of the paper as many communi- together to resolve collectively how to deal with
ties and nation states try to live in global peace the aftermath of the offence and its implications for
the future.
and harmony whilst always, in the first instance,
being mindful of their own interests. This is a In line with this ethos, Chi-Kong Lee (2008)
balance not always peacefully achieved. contends that:
Placing a premium on the “doctrine of the mean”
Brian Steels PhD and Dot Goulding PhD have extensive and peaceful resolution of conflict, Chinese tradi-
experience in the training, delivery and practice of tional legal culture, being built on principles of
Community Group Conferencing and Circle Sentencing/ Confucianism, historically pursued a society where
Healing. They were both born in Post-WW2 Britain, have the individual should live in harmony with Heaven
lived in Australia for over 40 years and see themselves as and Nature. This philosophy is consistent with
a part of the Asia Pacific Communities. restorative justice’s emphasis on restoring breaches
in relationships with victims and the community.
B. Steels, Ph.D. (*) • D. Goulding, Ph.D.
Asia Pacific Forum for Restorative Justice,
Perth, Western Australia Whilst nations develop diverse and often
e-mail: [email protected]; [email protected] inconsistent criminal codes and procedures to

380 B. Steels and D. Goulding
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
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
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
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
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
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.
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
Most restorative justice processes that are

practiced today, regardless of region or culture, 1
Written statement by Chief Stipendiary Magistrate
have a level of shaming, generally enough to Steven Heath (2002) upon completion of the pilot restor-
ative and transformative justice project carried out by
highlight dissatisfaction with the offender’s Goulding & Steels in Court 37 Central Law Courts, Perth
behaviour, whilst giving positive regard to the Western Australia; the Court over which he regularly
person. This forms the underpinning philosophy presided.
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,
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
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
Dennis Sing-wing Wong and Louis Wai-yin Mok
(PRC). This article begins by describing the cur-

26.1 Introduction rent juvenile justice system. It then highlights
how RJ was conceived and its role in juvenile jus-
Restorative justice (RJ) has developed and grown tice intervention. The article also analyzes the
rapidly in recent decades with the emergence of evolution of restorative practices by referring to
principles, standards, and new intervention prac- journal articles from an academic PRC database
tices for criminal justice and school initiatives and examines the factors conducive to the emer-
(Braithwaite and Mugford 1994; Bazemore 2001; gence of restorative practices in the PRC. Finally,
Bazemore and Umbreit 2001; Bazemore and the trends in RJ development are discussed.
Schiff 2005; Johnstone 2002; Maxwell 2007;
Morris and Maxwell 2001; Newell 2007; Van
Ness 2003; Vides Saade 2008; Walgrave 2002; 26.2 Changing Juvenile Justice
Wong 2008; Zehr 1990; 2002). Over the past 20 in the PRC
years, various restorative practices have been
developed to help offenders, particularly juvenile Article 17 of the PRC’s Criminal Law establishes
offenders, take responsibility for their crimes and 14 as the minimum age of criminal responsibility
make appropriate reparation for what they have and 18 as the age of full legal accountability.
done to their victims and communities (Harris A juvenile under 14 bears no criminal responsi-
2008; Johnstone and Van Ness 2007; Lo, Maxwell bility. Juveniles between 14 and 16 are liable only
and Wong 2006; Marshall 1995; Maxwell and when they have committed 8 types of serious
Morris 1993; McCold and Wachtel 2002; Van crimes, including homicide, aggravated assault,
Wormer 2008). Though many countries are pur- robbery, rape, arson, drug trafficking, bombing,
suing RJ practices as new initiatives for dealing or poisoning. A person over 16 bears full crimi-
with youth offenders, little documentation exists nal responsibility but is exempt from the death
on the use of RJ in the People’s Republic of China penalty if under 18. Essentially, anybody 16 or
older who commits a crime bears full criminal
This work was supported by a grant from the Research responsibility.
Grant Council of Hong Kong (project number: CityU The PRC’s principle of “Education, Reform,
148809). and Rescue” has been a guiding principle in the
D.S.W. Wong, Ph.D. (*) • L.W.Y. Mok, Ph.D. treatment of deviant juveniles and youth offend-
Department of Applied Social Studies, ers. Education is generally recognized as the pri-
City University of Hong Kong,
mary means of delinquency prevention, while
Kowloon, Hong Kong
e-mail: [email protected]; punishments such as “reform and rescue” are
[email protected] regarded as a complement to education. The

394 D.S.W. Wong and L.W.Y. Mok
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
Juvenile offenders or potential

delinquents aged 14–17
Police
(Public Security Organizations)
Non-Criminal Case Criminal Case
Informal measures Formal measures

(by committees with assistance (by statutory bodies)
from local police)
Bangjiao Procuracy
(Assisted education) (Procuratorate)
Informal caution
Suspended
Prosecution
prosecution
Restorative
Restorative Work-study Juvenile court
Supervised practices
work / practices schools
community
services
1. Suspended sentence 2. Community supervision 3. Custodial

- Judges’ reprimand together - It is similar to the probation order. treatment
with community reintegration Services include: - “Re-education
programs. Moral education through Labor” (i.e.,
- Restorative justice programs. Vocational training and juvenile detention
supervised work centre)
Community services
Restorative justice programs .
Fig. 26.1 Juvenile Justice and Restorative Justice (RJ) in China
26.3 Restorative Justice Practices informal measures, including informal caution-

and Their Link to Juvenile ing and bangjiao (assisted education). In infor-
Justice in the PRC mal cautioning, the neighborhood district’s public
security organization cautions a juvenile who has
As shown in Fig. 26.1, juvenile delinquency con- committed a minor delinquency, who is then
trol occurs with the help of both informal and referred back to his or her school, parents, or
formal measures. There are at least two types of guardians for follow-up. In bangjiao, noncriminal
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.
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 coming 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
Table 26.1 Themes appearing in the publications

Frequently, n (%) Occasionally, n (%) Never, n (%) Total, n (%)
1.1 Discussing how RJ can be used to 32 (12.7%) 106 (42.1%) 114 (45.2%) 252 (100% )
help victims
1.2 Discussing how RJ can be 85 (33.7%) 45 (17.9%) 122 (48.4%) 252 (100% )
integrated into the current criminal
justice system
1.3 Discussing how RJ can be 38 (15.1%) 19 (7.5%) 195 (77.4%) 252 (100% )
integrated into the juvenile justice
system
1.4 Discussing whether RJ can be 58 (23.0%) 76 (30.2%) 118 (46.8%) 252 (100% )
integrated with Chinese philosophies
and politics
1.5 Discussing the emergence of RJ in 39 (15.5%) 157 (62.3%) 56 (22.2%) 252 (100%)
the West
reconciliation shares basic principles with RJ, 26.4 Evolution of Restorative

it is not equivalent to the Western practice. Justice in the PRC
The former approach emphasizes repairing the
harm done and restoring relationships, whereas In order to understand whether RJ is growing rap-
the latter focuses on seeking material compensa- idly in the PRC, a literature review of Chinese aca-
tion for victims (Chen 2009; Zhao 2008). A sub- demic journal articles published over the past 5
stantial number of PRC scholars have devoted years was conducted. The review searched all schol-
much time and effort to identifying the similari- arly print journals using the keywords huifuxing sifa
ties and differences between RJ and the PRC’s (“restorative justice”) in the China Academic
criminal reconciliation (Di and Cha 2007; Li Journals Full-text Database for the period between
2009; Zhao and Zhang 2012). More than 24 prov- January 1, 2006 and December 31, 2010. It was
inces, self-administrative regions, and munici- found that 261 Chinese academic journal articles
palities have either pioneered or established a contained the keywords; however, 9 cannot be
criminal reconciliation approach since 2003 (Su accessed from the Internet database. Thus, only 252
and Ma 2009), though only a portion of minor articles were printed for further content analysis.
criminal cases are being handled this way. For These were obtained from 164 different academic
example, the official statistics from the local journals, including the renowned Legal System and
procuracies of Beijing City show that only 667 Society, Legal Forum, Youth Studies, and Law and
(14.5%) of their 4,607 minor criminal cases Social Development in the PRC.
were handled through criminal reconciliation in Table 26.1 presents statistics on the themes
2003 (Xiao 2011) and that 194 cases were han- appearing in the articles. The research team
dled through criminal reconciliation at Changde classified the concepts relating to the themes
City in Hunan province in 2010 (Tan 2011). according to three levels—“frequently,” “occa-
Overall, criminal reconciliation is not yet sionally,” and “never.” For the concept of “vic-
regarded as the primary means of handling timology,” 12.7% talked about how RJ can be
juvenile criminal cases. Nevertheless, as stated used to help victims frequently, 42.1% talked
in the 2010 PRC Yearbook, the Supreme about this occasionally, and 45.2% did not talk
People’s Procuratorate has indicated that such a about it at all (see item 1.1). Concerning how RJ
model will definitely be developed in the near can be integrated into the current criminal justice
future (Cao 2010). system, 33.7% talked about it frequently, 17.9%
Table 26.2 Distribution of key themes in the publications

Key themes appearing in the publications n %
Theme 1: RJ and Victimology 32 12.7%
Theme 2: RJ and Criminal Justice (excluding juvenile justice) in the PRC 85 33.7%
Theme 3: RJ and Juvenile Justice in the PRC 38 15.1%
Theme 4: RJ and Chinese Philosophy and Politics 58 23.0%
Theme 5: Development of RJ in the West 39 15.5%
Total 252 100%
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).
Table 26.4 Quoting real-world examples of restorative practices, by key themes

Major themes Never quoted, n (%) Quoted, n (%)
Theme 2: RJ and Criminal Justice (excluding juvenile justice) in the PRC 77 (32.9%) 8 (44.4%)
Total 234 (100%) 18 (100%)
Table 26.5 Quoting international references, by key themes

Major themes Never quoted, n (%) Quoted 1–4, n (%) Quoted 5 or more, n (%)
Theme 1: RJ and Victimology 6 (6.3%) 24 (20.0%) 2 (5.4%)
Theme 2: RJ and Criminal Justice 41 (43.2%) 34 (28.3%) 10 (27.0%)
Theme 3: RJ and Juvenile Justice in the 19 (20.0%) 13 (10.8%) 6 (16.2%)
PRC
Theme 4: RJ and Chinese Philosophy and 21 (22.1%) 30 (25.0%) 7 (18.9%)
Politics
Theme 5: Development of RJ in the West 8 (8.4%) 19 (15.8%) 12 (32.4%)
Total 95 (100%) 120 (100%) 37 (100%)
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 2: RJ and Criminal Justice 53 (30.6%) 32 (40.5%)
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
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
Table 26.7 In favor of the development of RJ in the PRC

n %
7.1 Strongly in favor of RJ implementation in China 137 54.4%
7.2 Moderately in favor of RJ implementation 105 41.6%
in China, with reservations
7.3 Not in favor of RJ implementation in China 10 4.0%
Total 252 100%
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
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

408 W. Dawei and T. Longfei
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
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-
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
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.
27.2.2 Main Contents of Victimology

27.2 Research Contents
of Victimology Over the past 30 years of development,
Victimology has been defined by many scholars
In the explorations of the contents of Victimology, at home, including Tang Xiaotian and Ren
according to what is generally regarded by both Keqin (1989), Zhao Ke (1989), Zhang Zhihu and
Chinese scholars and scholars worldwide as the Xu Mingjuan (1989), Dong Xin (1993), Kang
problems of Victimology that should be dis- Shuhua, Wang Dai and Feng Shuliang (1994),
cussed, the author of this paper includes ten rela- Wu Zongxian (1997), Guo Jian’an (1997), Wang
tive items of contents to be discussed specially. Dawei (1997a, b), Ren Keqin (1997), Wang
Shun’an (1998), Yang Zhengwan (2002), Mo
Hongxian (2007), Zhao Guoling and Wang
27.2.1 Victim Haitao (2008), Ma Guo’an (2005), Zhang
Hongwei (2007a, b, c), Ren Yufang (2007), and
In the past three decades, monographs and Li Wei (2010), based on their relevant studies.
research papers in China have defined victims Today, the Chinese scholars generally agree
from different angles. The names include criminal to incorporate the broad understanding of
victim, victim of crime, victim, and aggrieved Victimology and the previous narrow sense of
party. The definitions of the concept all share one Victimology.
thing in common, that is, the body that offends The scholars at home have yet to form a
against the legitimate rights and interests of a complete theoretical structure of their own.
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
further the theoretical study by focusing more on

the real conditions in China, and to verify the Defensible space (Newman, 1973) Low
extent of uncertainty and the practical value of
relevant theories in the real-world practice, so as
Defense-incapable space (Merrym, 1981)
to better serve the end of cracking down on crimes
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,
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
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
conducted relevant research about situation of 27.2.8 Victimization Prevention

victimization in the early researches.
In the paper of Research about Victims in Some China’s Scholars, Shi Huanzhang, Zhang
Financial Fraud, written by Wang Dawei, he dis- Jianrong (1997), Tang Xiaotian, Wang Dawei
cussed four interaction processes between perpe- (1997a, b), Zhang Zisheng, Shi Guoping, Wang
trators and victims, which are utilization-available Jianmin, Song Haobo (2004a, b), Liwei, etc. all
patterns of fraud formed between fraud offenders proposed the concept of “victimization preven-
and victims not involved, pushing patterns of tion” and carried out the relevant researches. In
fraud formed between fraud offenders and vic- Criminology, Wang Dawei, who participated in
tims involved, model of victim translocation, and the redacting of this book in 1999, has made the
Stockholm model. Regarding the study of envi- relevant researches on the relations between pre-
ronment of victimization from Chinese scholars, vention of victimization and crime from three
crime and victimization situations can be aspects, namely, the interrelation, differences,
classified as crime and pre-victim situation, crime and interaction between victimization prevention
and during-victim situation, and the post-victim and crime prevention.
situation from the perspective of time evolution. Chinese scholars believe that the overall
If in chronological sequence, which can be objectives and the fundamental purposes of the
divided into the implied situation of during-crime victimization prevention are similar to the crime
and victimization, the imaginative situation of prevention. Whether victimization prevention or
during-crime and victimization, and the fact situ- crime prevention, the overall objectives and the
ation of during-crime and victimization; Chinese fundamental purposes are to effectively prevent
scholars have implemented relevant research and and reduce the incidence of crime and victim, to
exploration to the crime opportunities and victim maintain social public order and protect public
interactions in the pre-context implied, medium- order. Before broad crime prevention includes
term imaginary as well as the lately real situa- the victimization prevention; crime prevention
tions. There are various complex forms in the and victimization prevention are different in pre-
way of combinations after the victim situations vention object, direct purpose, measures, meth-
are connected with their specific criminal forms ods, and means; but victimization prevention and
(Fig. 27.2). crime prevention can be mutually affected and
Fig. 27.3 Cognition framework. Data source: Prepared by Wang Dawei in according with the relevant materials, the
year of 2009
transformed. Based on binary crime prevention 27.2.9 International Comparison

theory, the study for the victimization prevention of Victimization
by Chinese scholars also includes three levels of
social prevention, group prevention, individual Affected by the international related study of
prevention, three stages of before-victim, during- Victimology, Chinese scholars have carried out
victim, and after-victim, the relations between research about victim’s issues both locally and
victimization prevention and crime prevention, abroad. In addition to the related translations, the
and other contents. The research also divides the scholars of Zhang Zhihui and Xu Mingjuan (1989),
victimization prevention types to explore in three Zhao Ke (1989), Xu Zhangrun, Wu Zongxian, Guo
different states of potential state, present state, Jianan (1997), Wang Dawei, Li Wei (2010) among
and post-victim state. The related researches on others have also begun to view said issues from the
victimization prevention in China undoubtedly international perspective.
contribute to the constitution of multifaceted, We can divide this into three main areas:
multilevel, different staged, and comprehensive research of Victimology, right of victim, law
measures with social public order comprehensive system of victim from different countries and
governance system (Fig. 27.3). areas, victim statistical systems and survey sys-
In the aspects of “victimization prevention,” tems, theoretical study and comparative study on
some scholars have formed their own views and phenomena of victimization. Chen Jianjun pub-
opinions through being combined with the lished a thesis on the comparative study of
contents of China’s public order comprehensive Mainland and Hong Kong, Macao and Taiwan
management and binary crime prevention theory. Victim Right and Security Issues. Li Bolin
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.
Chinese scholars’ exploration of Victimology private prosecution programmed protection of

contents is not only from the related realistic victim, the self-examination in victim criminal
issues of victim, but also from the sublimation of damages compensation system, national com-
international Victimology development situa- pensation and relief to victim and restitution and
tions, their own exploration and research. These victim protection; basically covers various
researches and explorations are the foundation aspects on victim and criminal procedure with a
and core contents of Chinese Victimology devel- certain characteristics. The following is just an
opment, which is worth further exploration in introduction in the aspects of victim rights, sta-
order to improve Chinese scientific understand- tus, legal aid, compensation system, and restitu-
ing of Victimology by Chinese scholars. tion system contained in relevant research.
27.3.1.1 Victim Rights

27.3 Other Subjects Exploration in On the basis of fully respecting the victim’s
the Victimological Localization rights regarding personal rights, right of access
to impartial judgment, freedom of religious
The study to Victimology is not limited to the belief, right to know, participation rights, right to
exploration of Victimology alone, but Chinese expression, right of supervision, etc. Wang
scholars also make a positive exploration of Jianmin, Liu Genju, Yang Zhengwan (2002),
Victimology as it pertains to the study of law, Fang Baoguo (2007), Dong Shitan (2006), and
Sociology, Psychology, science of public admin- other scholars made an in-depth research on the
istration, etc. These explorations remain to be rights of victims. They carried out a discussion
integrated into the research on Victimology so as on Criminal Procedure Law in 1996 which gives
to make the study for victimization issues in victims the position of litigants. Some scholars
China a more comprehensive one integrating highly praise it, some criticize it, and some sug-
more aspects and present the tendency of gest improving the related regulations of the law
localization. on the basis of affirmation. Some scholars criti-
cize that the law gives the victims the position of
litigants mainly because victims have some
27.3.1 Victimological Issues from important rights including the right to apply for
the Law Perspective withdrawal, right of entrusting the agent, direct
right to institute a criminal litigation, right to
As many of the scholars who carried out the early request a protest, right to apply for supplemen-
exploration of Victimology in China had their tary verification or another verification for expert
academic background in Law, such as Tang conclusion. The litigant position of the victim
Xiaotian, Xu Zhangrun, Zhang Zhihui, Zhang still has a some limits; victim cannot enjoy com-
Weiguo, etc. these studies are mostly from the pletely equal rights as with the defendant.
perspective of Law including the roles, rights, Furthermore, in order to protect the victim rights
victim–offender mediation, support systems, sys- in the Criminal Justice System of China, many
tem of national compensation as well as restitu- scholars raise suggest some modifications and
tion, etc. The Criminal Procedure Protection of improvements, such as improving the victim
Victims written by Fang Baoguo addressed the right to investigation and discovery, victim’s
discussion in distinct chapters to the theoretical right to know; enhancing the system of victim
basis of victim proceeding with criminal actions, entrusting agents; perfecting the statement right
from “Three Parties structure” to “Four Parties of victims in the stage of review and prosecution;
structure”—reform of victim and criminal proce- giving the victims the right to institute an inci-
dure model, criminal procedure law relation dental civil action independently, the right to an
under the “Four Parties structure,” victim rights independent appeal and final declaring; building
protection in the case of public prosecution, the right to claim compensation for emotional
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
views on victim prevention. Issues of vulnerable self-administration, high degree of openness

groups are usually caused by social transforma- and interactivity, space virtuality and crossing
tion. With imbalanced social structures, China is national boundaries, and quick information trans-
still a developing country and there are vulnera- fer. The development of the network society has
ble groups different from those in other countries. brought about various problems, such as moral
In the study of vulnerable groups, social support, conflict, information pollution, and intellectual
social security, and social control mode are property issues of network information, and
closely related to the study of Victimology. brought new challenges to the study of victims,
China is currently experiencing fundamen- but also provided new ideas and new directions
tal changes of economic construction, realloca- for the research of Victimology. The hot spots of
tion of social resources, and historic innovation problems about the network society: network
of social control modes. Multidimensional interpersonal dependency, privacy protection,
social hierarchy is bound to widen the social and adverse incitement will expand the area of
gap between the rich and the poor. Although Victimology research. The study of victims in
social public order legislation has achieved network group events in the network society,
significant progress in the protection of the network fraud, network organized crime, and
rights of female victims, juvenile victims, the crime caused by network interpersonal depen-
elderly victims, victims with disabilities, and dency are the focus of many scholars.
migrant worker victims, there is still a lack of a There have been studies and explorations on
solid theoretical system and institutional frame- victims of the network society, but further expan-
work to protect the rights of vulnerable group sion and research is still needed.
victims. In the Seminar on “Protection of the
Rights of Social Vulnerable Groups” in 2005, 27.3.2.3 Relevant Victimization
participants discussed “Harmonious Society in Urbanization
and Constitutional Protection for Vulnerable In China, Wang Fazeng, Chen Fengyun, Wang
Groups in Society” and “Legal Basis for the Dawei (2004), Zheng Yefu, and Xia Jianzhong
Protection of the Rights of Vulnerable Groups have carried out various researches related to
in Society,” which is undoubtedly playing a urban Sociology.
positive role in promoting the research on vulner- After its founding in 1949, China has wit-
able group victims. nessed a rapid development of urbanization.
The number of vulnerable groups in China is Victimization and distribution in urban environ-
huge. In the whole process, Sociology will better ments have their own characteristics. Referring to
protect vulnerable groups, safeguard their legiti- the existing studies of the Chicago School in the
mate rights and interests, and have a positive United States and other scholars, Chinese schol-
influence in the development of Victimology. ars began to focus on the relationship between
crime and space environment in urban areas
27.3.2.2 Victims of the Network Society based on the characteristics of China’s urbaniza-
Jin Wulun, Qi Gong, Deng Xinmin, Xie Zemin, tion development. Wang Fazeng introduced the
Zhao Shuizhong, Lu Hanlong, and Wang Ding geographical study of crime and victimization in
(2010) have conducted researches on the network foreign cities as early as 1988, and then succes-
society and related victims. sively studied the impact of urban space environ-
The number of Chinese Internet users ranks ment on urban crime and victimization, the
first position in the world. Chinese scholars integrated view on reasons for urban crime and
have studied various fields and industries in the victimization, the blind spots of nonpublic space,
network society, analyzed characteristics of net- public space, and marginal space in urban crime
works, as a tool for social control, and summed and victimization, and comprehensive treatment,
up the four characteristics of network society and the relationship between urban development
making it different from social reality: network and urban crime, and in 2003 published the book
society is featured by its unique structure and titled “Urban Crime Analysis and Spatial
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
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
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
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.
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
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 viction 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
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.
27.4.5 Internationalization of China’s References

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Index
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
J. Liu et al. (eds.), Handbook of Asian Criminology, DOI 10.1007/978-1-4614-5218-8, 433

434 Index
British Crime Survey (BCS), 233, 344 commercial sexual exploitation

British Phonographic Industry (BPI), 88 child molesters, 363–366
Budapest Convention child pornography, 361–362
CoE, 54 child trafficking and prostitution, 362–363
computer security laws, 56 sexual crime, 363
crime-ware, 55 Child Protection Registry, 191
development of, 57–58 Child trafficking and prostitution, 362–363
law enforcement agencies, 53–54 China’s victimology
obscenity and pornography/erotica, 57 developing prospective
PRC Criminal Law, 56 internationalization, 431
substantive laws, 54 localization, 429–430
telecommunication networks, 55 recent period, 429
Burglary, serious crime, 177 social system, 430
Business Software Alliance (BSA), 93 victim support mechanism, 431
development process, 408–413
law perspective
C assistance and restitution, 422
Cambodia independent litigator, 422
corruption, 171 victim rights, 421–422
courts and procedure witness, 422
accused persons, rights of, 175–176 origin of, 407–408
alternatives and outcomes, prosecution, 176–177 psychological perspective
juvenile justice, 174 accidents and victims’ psychological intervention,
prosecution and case investigation, 176 428–429
crime categories and patterns, 168–169 disasters, 428–429
crime statistics, 169–171 public security feelings survey, 427–428
Criminal Justice System, 172–173 serious and major cases, 426–427
history and politics, 167–168 research contents
legal system, 172 China’s scholars, 417
police, role of, 173–174 evaluation, 420–421
prisons, 178–180 factor of, 417
punishment, 177 international related study, 419–420
regional crime patterns, 171–172 methodology, 415–416
Cambodian Criminal Justice Assistance Project prevention, 414, 418–419
(CCJAP), 173 repeat victim, 415
Cambodian League for The Promotion and Defense of theory of, 414, 415
Human Rights (LICADHO), 168, 173–175, type of, 416
177–179 victim, 413–414
Cambodian National Police (CNP), 173 victim and offender, 417–418
Cambodian People Party (CPP), 168 victim support, 415
Captagon, 119, 121 social evaluation, 425–426
Central Bureau of Investigation (CBI), social management
32, 200 development strategies, 424–425
Central Information System on Battered Spouse Cases emergency system, 425
and Sexual Violence Cases, 191 sociological perspective
Central Intelligence Bureau (CIB), 200 network society, 423
Central Police Office (CPO), 248 in urbanization, 423–424
Central Police University (CPU), 350 vulnerable groups, 423
Central Superior Service (CSS), 251 Coalition Against Insurance Fraud (CAIF), 99
Centre against International Human Trafficking Commercial sexual exploitation of children (CSEC), 361
(CAHT), 138 Committee for implementation of Legal Aid Schemes
Child abuse (CLIAS), 206
Japan, 359–361 Communist Party of China (CPC), 427
South Korea, 361 Computer-Assisted Telephone Interview (CATI), 347
Child Labor Act (CLA), 139 Convention on Cybercrime, 54
Child pornography, 361–362 Convention on Psychotropic Substances, 116
Child protection Copyright, Designs and Patents Act, 92
child abuse Correctional Services Department (CSD), 190
Japan, 359–361 Correction Center I (CCI), 179
South Korea, 361 Corruption Perceptions Index (CPI), 25
Index 435
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
Domestic violence, India (cont.) H

laws of Manu, 368 Harakat-Ul Jihad, 149
nari adalats, 375–376 Hizb ut-Tahrir (HuT), 153
public awareness, 372 Holistic approach, 321
PWDVA Hong Kong
anti-dowry law, 375 autonomy, 183
civil law, 373–374 best and brightest citizens, 38–39
PO, 374 colonial government, 196
Vedic society, 367–368 Comprehensive Anti-corruption Legislation, 40–41
women activists, 368 corrupt offenders, 31, 42–43
Drug abuse and trafficking criminal justice system
ATS, 118–119 C&ED, 194–195
cannabis resin, 115 CSD, 195–196
criminal justice responses, 119–120 Hong Kong Police, 193
drug misuse ICAC, 193–194
consequences, 122 judiciary, 195
patterns of, 120–122 EAB survey, 29
substance abuse, 122–124 favorable policy contexts, 36
HIV infection rate, 116 finance and service sectors, 183
illegal transnational business, 116 government effectiveness, 34
ketamine, 115 ICAC, 32
methamphetamine, 115 independent anti-corruption agency, 39–40
opiate and heroin market, 116–118 Institutional Trust level, 28
opium, 115 instrumental legitimacy, 196, 197
Drug Abuse Information Network for Asia and the meritocracy, 36–38
Pacific (DAINAP), 118 official crime data
Drug Addiction Treatment Centre (DATC), 196 CSD, 190
Drug Enforcement Administration (DEA), 65, 160 Customs and Excise Department, 188–189
Drug trafficking, 177 drug abuse data, 191
Hong Kong Police Force, 185–188
ICAC, 188
E Judiciary, 189–190
East Asian Barometer (EAB), 29 victimization surveys, 190–191
East Turkistan Information Center (ETIC), 154 PERC, 35
East Turkistan Islamic Movement (ETIM), 154 police statistics, 184
East Turkistan Liberation Organization (ETLO), 154 public perception, crime, 184
Enhanced Productivity Programme (EPP), 42 Red tape reduction, 41–42
standardized and anonymous questionnaire, 184
unofficial crime data, 191–192
F voluntary drug treatment agencies, 184
Fahrul Tanjung Group, 151 Hong Kong Federation of Youth Groups
Family Group Conferences (FGC), 366 (HKFYG), 192
Federal law, 231–232 Hudud laws, 232
Federally Administered Tribal Areas (FATA), Human Development Index (HDI), 247
153, 155, 247 Human trafficking
Federal Public Service Commission (FPSC), 251 Bangladesh
Federation Against Copyright Theft (FACT), 91 prosecution, 138
Federation of Finnish Financial Services (FFFS), protection and prevention, 142
106, 108 trafficking trends, 134, 135
Federation of Finnish Insurance Companies Cambodia
(FFIC), 109 prosecution, 137
Financial Supervision Commission, 108 protection and prevention, 140
First Information Report (FIR), 256 trafficking trends, 130
Fraud Act, 109 China
Friend, 74, 78 prosecution, 137
Friends of Active Copyright Education (FA©E), 93 protection and prevention, 140–141
trafficking trends, 130–131
India
G prosecution, 138–139
Global Competitiveness Reports, 35, 36, 45 protection and prevention, 143
Global Illicit Drug Trends, 116 trafficking trends, 133–134
Index 437
Japan Independent Commission Against Corruption (ICAC),

prosecution, 137 30, 40, 184
protection and prevention, 141 India
trafficking trends, 131 ADR, 206
Lao PDR CBI, 200
prosecution, 137 Central Reserve Police Force, 200
protection and prevention, 141 CIB, 200
trafficking trends, 131 cognizable crimes, 202
Myanmar correctional administration, 206
prosecution, 138 court, function of, 204–205
protection and prevention, 142 crime statistics, 202–204
trafficking trends, 131–132 death penalty, 205
Nepal domestic violence (see Domestic violence, India)
prosecution, 139 federal government and police force, 199
protection and prevention, 143–144 field establishment, police force, 200–201
trafficking trends, 134, 135 human trafficking
Pakistan prosecution, 138–139
prosecution, 140 protection and prevention, 143
protection and prevention, 144 trafficking trends, 133–134
trafficking trends, 135–136 Indian Penal Code, 202
physical and mental abuse, 129 judicial review and criminal justice
source and destination countries, 136 administration, 210
Sri Lanka judiciary, role of, 204
prosecution, 139–140 juvenile justice, 209–210
protection and prevention, 144 Lok Adalats, 205–206
trafficking trends, 135 occupancy rate, 207
Thailand open air prisons, 208
prosecution, 138 parole, 209
protection and prevention, 142 police, functions of, 201
trafficking trends, 132–133 power and corruption, police abuse of, 201–202
“Trafficking in Persons” report, 136–137 prison
types and major forms of, 130 modernization of, 208
UN definition, 130 statistics, 206
Vietnam types, 207–208
prosecution, 138 probation, 208–209
protection and prevention, 142 public prosecution, 205
trafficking trends, 133, 134 State Police, 200
women, detention of, 208
Indian Penal Code (IPC), 133, 202, 369
I Information and communications technologies (ICT), 49
Illicit activities Information Technology Act (IT Act), 56
Asian gangsters, 72 Injecting drug users (IDUs), 116
countersurveillance and anti-surveillance Inspector General of Police (IGP), 232
measures, 73 Institute of Public Administration and Law (IPAL), 172
criminal tactics, 74 Insurance Anti-Fraud Institute (IAFI), 108
financial gains, 73 Insurance Council of Australia, 100
Golden Triangle, 72 Insurance Fraud Bureau, 109
“head chefs,” 73 Intellectual property crime online
illegal deep-sea fishing, 74 cyber-piracy, 84
international drug trafficking, 72 debate
legitimate and semi-legitimate businesses, 75 anti-piracy education campaigns, 93–94
police channels, 74 IP piracy decriminalisation, 94–95
Immoral Trafficking Prevention Act (ITPA), 139 national laws and international treaties, 92–93
Imprisonment pirates, 91
custodial institutions, 318 intellectual real estate, 84
DOC, 317 Internet
offenses, types of, 319 copyright law, 84
prison population, 317–318 cybercrimes, 86
rehabilitation programs, 317 digital revolution, 85
Independent Authority Against Corruption (IAAC), 32 patents, 85
438 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
statistics, 234–235 On-Line Applications System for Integrated Services

violent crime, 234, 235 (OASIS), 42
federal law, 231–232 Online Procedure Enhancement for Civil Applications
hudud laws, 232 (OPEN), 30
Islamic law, 232 Opioid substitution therapy (OST), 124
prison population Opportunist insurance fraud
prosecution and courts antifraud campaigns, 106–108
High Court, 237, 238 antifraud measures, 101
Magistrates Court, 237, 240 comparative analysis, 110–111
Sessions Courts, 237, 239 financial pressures, 101
reforms Finland, 105–106, 109–110
administration, 244–245 Fraud Triangle, 100
criminal law, 241–242 modern society, 104
criminal procedure and evidence law, 242–244 moral hazard
imprisonment, 242 individualism, 103–104
Medan Group, 152 insecurity, 104
Methadone maintenance treatment (MMT), 123 risks, 102–103
Methamphetamine, 121 political economy, 101–102
Ministry of Child Development and Women’s Affairs private insurance industry, 99
(MOCDWA), 144 profit and investment, 105
Ministry of Civil Affairs (MCA), 140 rationalizations, 100
Ministry of Justice Investigation Bureau (MJIB), 32 social reaction, 99
Ministry of Public Security (MPS), 140 softcore insurance fraud, 100
Ministry of Women and Child Development (MWCD), 143 Taiwan, 105–106, 110
Ministry of Women, Children and Social Welfare UK, 105–106, 108–109
(MWCSW), 143 underwriting scientific development and
Misdemeanours Punishment Ordinance (MPO), responsibilization, 104–105
40, 194 Osadamegaki-Hyakkajo, 215
Modern Women’s Foundation (MWF), 351
Moro Islamic Liberation Front (MILF), 152, 155, 156
Motion Picture Association of America (MPAA), 89 P
Murder, serious crime, 177 Pakistan criminology and criminal justice
Music piracy, 88–89 ANF, 249
CPC, 255
crime rate, 248–250
N crimes against person, 249
Narcotic Drugs and Psychotropic Substances Act, 205 crimes against property, 249
National Anti-Corruption Commission (NACC), 32 criminology status
National Child Protection Authority (NCPA), 140 academic status, 250
National Committee on Women Prisoners, 208 curriculum of, 250–251
National Crime Records Bureau, 204 literature, 251, 254
National Crime Victimization Survey (NCVS), 344 PJC, 254–255
National Intelligence Council, 158 professional organizations, 255
National People’s Congress (NPC), 427 PSC, 254–255
National Police Agency (NPA), 297, 346–347 trainings, 251
National Police Bureau (NPB), 248 DPO offices, 248
National Research Institute of Police Science (NRIPS), FIR, 256
225, 228 judiciary/courts
New People’s Army (NPA), 152, 156 district courts, 262, 263, 280
Nongovernmental organizations (NGOs), 208, 424 magistrate courts, 262
Nonprofit organizations (NPO), 424 reforms, 262, 263
North-West Frontier Province (NWFP), 149 Session Courts, 262
NPA. See National Police Agency (NPA) structure and functions, 261–262, 279
NPC. See National People’s Congress (NPC) NPB, 248
parole
definition, 267, 268
O functions, 268
Office of the Attorney General (OAG), 312 prisoners eligible, 268
Oldboy, 71 procedures, 268
Ombudsman (OMB), 32 statistics, 268–269
440 Index
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
levels, 398–399 Sri Lanka

national legal framework, 402–403 restorative justice
People’s Procuracy possesses, 396 aftercare service system, 295
PRC’s principle, 383–384 community-based corrections, 292–293
quoting international references, 400 compensation, 292
scientific research findings, 399–400 conditional discharge, 293
Sri Lanka plea-bargaining, 294
aftercare service system, 295 probation, 293
community-based corrections, 292–293 victim offender mediation, 291–292
compensation, 292 retributive justice
conditional discharge, 293 Criminal Procedure Code, 288
plea-bargaining, 294 death penalty, 289
probation, 293 judicial system, 286–287
victim offender mediation, 291–292 Penal Code, 288, 289
Retributive justice policing system, 290–291
Criminal Procedure Code, 288 primitive societies/tribal societies, 286
death penalty, 289 prison system, 290
judicial system, 286–287 Sinhalese law, 287
Penal Code, 288, 289 types, 287
policing system, 290–291 statistics, 284–286
primitive societies/tribal societies, 286 Sri Lanka Bureau of Foreign Employment (SLBFE),
prison system, 290 139, 144
Sinhalese law, 287 State of Cambodia (SOC), 168
types, 287 Street Mobster, 73
Royal Hong Kong Police Force (RHKPF), 39 Sympathy for the Underdog, 77
Synthetics Monitoring: Analyses, Reporting and Trends
(SMART), 118
S
Serious and Organised Crimes Agency (SOCA), 92
Service Improvement Unit (SIU), 41 T
Sexual crime, 363 Taiwan
Shintoism, 215 crime victims. (See Crime victims)
Singapore death penalty, 306–307
anti-corruption laws, 31 judges
2006 Asian Barometer Survey, 28 administration court, 304
best and brightest citizens, 38–39 constitutional court, 304
business, 30 grand judges, 304–305
Comprehensive Anti-corruption Legislation, judicial discretion, 305
40–41 levels, 303
corrupt offenders, 42–43 plea bargaining, 302–303
CPIB, 32 police
favorable policy contexts, 36 CCTV and security devices, 298–299
independent anti-corruption agency, 39–40 crime statistics, 298
Institutional Trust level, 28 cyber crimes, 299
meritocracy, 36–38 fraud games, 299
penalty, 31 hooligans/gangsters, 300
public officials, 35 prosecutors, criminal investigations, 301–302
Red tape reduction, 41–42 Taiwan Areas Criminal Victimization Survey (TACVS),
violence against women. (See Violence against 347
women) Taiwan Institute of Insurance Industry, 106
Singapore Civil Service (SCS), 37 Taiwan Insurance Bureau, 106
Singapore Police Force (SPF), 39 Tehrik-i-Taliban (TTP), 149, 157
Single Convention on Narcotic Drugs, 116 Terrorism
Sipah-e-Sahaba Pakistan (SSP), 149 Central Asia, 153
Software and Information Industry Association (SIAA), 93 crime nexus, 158–161
Sonatine, 77 firearms assault, 148
South Korea functional enabling environment, 156–158
child abuse, 361 ideological enabling environment, 154–156
child molesters, 364–366 Jewish Chabad Lubavitch movement, 147
Special and local laws (SLL), 369 jihadi agenda, 148
442 Index
Terrorism (cont.) Western culture, 72

Maoist/Nexalite terrorism, 148 Yakuza movies, 71
Marxist agenda, 148 China, 69, 71
Mujahiddin fighters, 147 counterfeit goods, 68
Northeast Asia, 153–154 disenchanted and marginalized youths, 79
police assault, 147 drug trade and smuggling activities, 68
South Asia, 148–150 glamour and excitement, 70
Southeast Asia, 150–153 heroin industry, 69
surveillance and counter-surveillance techniques, 148 illegal activity, 66
Thailand contemporary crime and punishment inaccurate stereotypes
criminal justice reform, 321–322 business ventures, 77
criminal policy and reform fish knife, 78
accused and offenders, 322–323 glamorization, 79
community participation, 323–324 sensational entertainment, 78
criminal justice agencies, 324 intra-gang and intergang violence, 69
forensic science, 324–325 Korean gangsters, 66
implementation, 323 legitimate and semi-legitimate business, 69
justice affairs, office of, 324 masculinity, 79
juvenile observation and protection, 325 “protective umbrellas,” 70
rights and liberties protection, 324 tongs, 67
special investigation, 324 transnational narcotics trafficking and human
current crime situation smuggling, 66
arrests, 310–311
crime victim survey, 314–315
drug-related offenses, 314 U
gambling and prostitution, 312 United Liberation Front of Assam (ULFA), 149
OAG’s statistics, 312–313 United Nations Department of Safety and Security
uniform crime report, 310 (UNDSS), 117
violent crime, 310 United Nations Human Development Programme
imprisonment (UNDP), 25, 116
custodial institutions, 318 United Nations International Crime Victim Survey
DOC, 317 (UNICVS), 171
offenses, types of, 319 United Nations Office on Drugs and Crime (UNODC),
prison population, 317–318 12, 323
rehabilitation programs, 317 United Nations Surveys of Crime Trends
probation and parole and Operations of Criminal Justice
adult offenders, 319 Systems (UN-CTS), 11
holistic approach, 321 United States Internet Crime Complaint
revocation and reoffending rates, 320 Centre, 49
social investigation, 319, 320
statistics, 320
punitive measures V
Criminal Procedure Code, 315 Victimology
Royal Pardon, 317 China (see China’s victimology)
types, 316 Japan, 227–228
Theft, Serious crime, 177 Video piracy, 89
Tim Ightiyalat, 152 Violence against women
Tokiwa International Victimology Institute, 229 earlier studies, 337–338
Trade-related aspects of Intellectual Property Rights IVAWS
(TRIPS), 83 intimate partner violence, 339
Transnational Government of Tamil Eelam (TGTE), 160 involvement and assessment, 340–341
Triad, Yakuza and Jok-Pok nonintimate partner violence, 339
Asian gangsters, cinema prevalence, 338–339
government censorship, 71 severity and perception, 340
illicit activities, 72–75 lifetime experience
Japanese yakuza films, 74 involvement and assessment, 336–337
Korean films, 71 physical, 332, 334
national specific cinemas, 71 repeat victimisation, 333, 334
violence, 75–77 respondents, 334–335
Index 443
severity and perception, 335–336 World Trade Organisation (WTO), 83

sexual, 332–334 World Uighur Youth Congress
methodology, 330–332 (WUYC), 154
socio-demographic, 330
X
W Xinjiang Uighur Autonomous Region
World Drug Report, 116 (XUAR), 154
World Health Organization (WHO), 11
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Handbook of Asian Criminology

Book · November 2013

Jianhong Liu Bill Hebenton

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ISBN 978-1-4614-5217-1 ISBN 978-1-4614-5218-8 (eBook)

Library of Congress Control Number: 2012951669

© Springer Science+Business Media New York 2013

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

This Handbook of Asian Criminology could not come at a better time. As

is different in Asia, just as we would reject the idea of “German science”

Hyderabad, India Lawrence W. Sherman

1 Progress of Asian Criminology: Editors’ Introduction ........... 1

Part I Types of Crime in Asia

2 Homicide in Asia ......................................................................... 11

Part II Crime and Criminal Justice in Selected Asian Countries

11 Crime and Justice in Cambodia ................................................ 167

12 Crime and Criminal Justice in Hong Kong .............................. 183

Part III Victims and Offenders

21 Violence Against Women in Singapore: Initial Data

26 Evolution of Restorative Justice Practices for Juvenile

Index ..................................................................................................... 433

Yossawan Boriboonthana, Ph.D. Department of Probation, Research and

Charles Hou, Ph.D. National Taipei University, Taipei, Taiwan

Hsiao-Ming Wang, Ph.D. University of Houston-Downtown, Houston, TX,

with debt ratios low, banking systems healthier,

J. Liu et al. (eds.), Handbook of Asian Criminology, DOI 10.1007/978-1-4614-5218-8_1, 1

Center-periphery relations and the internationalization of criminology

Centre 1. Infrastructure and internal organisation Periphery

2. Conditions of existence and reproduction

3.Internal position and recognition

(adapted from Keim, 2008)

Fig. 1.1 Center–periphery relations and the internationalization of criminology

nal justice system in a number of selected Asian

This Handbook of Asian Criminology seeks to 1.3 Limitations

practices, and our Handbook can only do limited

Based on empirical research, this chapter also

J. Liu et al. (eds.), Handbook of Asian Criminology, DOI 10.1007/978-1-4614-5218-8_2, 11

Table 2.2 Homicide trends in East Asia, 2003–2008 (UNODC 2010)

Table 2.4 Homicide trends in South Asia, 2003–2008 (UNODC 2010)

homicide rates over time with a comparative

Second, many Asian countries are undergoing

sample included Japan, Hong Kong, Philippines,

2000 and 2004, non-robbery-related homicide

Jon S.T. Quah

ness in Asian countries according to three indicators.

J. Liu et al. (eds.), Handbook of Asian Criminology, DOI 10.1007/978-1-4614-5218-8_3, 25

Table 3.3 Public trust of politicians in selected Asian countries, 1999–2009/2010

Table 3.6 Level of Institutional Trust in Hong Kong, 2001

Table 3.7 Ease of doing business in six Asian countries, 2011

Table 3.10 Competence of Public Officials in Asian countries, 1999 to 2002–2003

Table 3.12 PERC’s evaluation of effectiveness of Asian bureaucracies, 1998–2009

Table 3.14 Ranking of 23 Asian economies on Doing Business Surveys, 2007–2011

from doing so, honesty and incorruptibility 3.8 Conclusion

Table 3.15 Policy contexts of Asian countries

In the final analysis, whether Singapore’s and