Alternative Measure for Criminal Prosecution
For nearly 4 decades, there have been demands and proposals for an alternative process to the criminal prosecution system. In 1989, the Office of the Attorney General proposed legislation to allow for delayed prosecution or alternatives to criminal prosecution in the judicial system. The bill was dropped due to political changes, but has always been hovering in the background of legislative change. In March this year, a draft for the Criminal Prosecution Alternatives Act (commonly known as the “Delayed Criminal Prosecution Act”) was submitted to the National Legislative Assembly (NLA) for approval.
Alternative measures or delayed prosecution involves mediation by a qualified mediator with the aim of reaching satisfactory compensation for the victim and to avoid official prosecution in court for the perpetrator. Article 11 of the draft lays out criteria for cases that would be eligible for the alternative measures:
(1) Compoundable cases
(3) Crimes with punishable by a prison term of no more than 5 years.
Besides meeting these criteria, many factors are also considered, such as, the victim’s willingness to enter the mediation process and the perpetrator must have either never received an imprisonment sentence or must not have been convicted of a misdemeanor charge and served a jail sentence within the previous 5 years, among others.
The renewed proposal to approve this Act has been met with both support and opposition. Channarong Praneejit, Chief Justice attached to the Office of the Supreme Court, submitted a petition to the NLA opposing the draft. His reasons are that the draft goes against constitutional principles because it allows for monitoring by probation officials without a judicial review and court order. It would give judicial powers to public prosecutors without proper checks and balances and transparency. Also, victims could be pressured into the alternative process by richer and more influential perpetrators, who would then avoid a criminal record. Under current legislation, the Public Prosecutor already has the discretion to not prosecute a case if they deem that there is insufficient evidence or the case is more detrimental than beneficial to society. In such a situation, the victim of a crime is still allowed to pursue the case as a private lawsuit. However, under the process outlined in the draft, the victim gives up the right to sue after the alternative process has been completed, and may not even file a lawsuit during the process. Furthermore, police investigators could lose or even destroy evidence, which would be extremely detrimental to victim if the case eventually goes on to trial.
In support of the draft, Visanu Krue-ngam, Deputy Prime Minister, points out that the application of such alternate measures would help to reduce the backlog of cases in the courts. It would also offer a chance for first-time offenders to turn their lives around without the stigma of a criminal record. It would also reduce the current problem of overcrowding in prisons. There is no need to be concerned that victims’ rights would be overlooked because even cases that meet the criteria for the alternative process will not go automatically to the alternative process. In any case, the victim must give consent. Article 5 prohibits the Act from being enforceable in Juvenile and Family Court, so minors would not be subjected to undue pressure to enter the alternative process.
After due consideration, the draft did not pass NLA approval this year. However, draft proponents continue to try to push the legislation through. Based on dominate opinions it appears that the Delayed Criminal Prosecution Act is a double-edged sword, and it remains to be seen if and when this draft will be submitted for approval again.