Thailand Law Journal 2011 Fall Issue 2 Volume 14

In any case, China is not an island when it comes to the development of its contemporary criminal justice practice. China has benefited from mutual cooperation programmes in the area of criminal justice. For instance, the Canada-China Criminal Justice Cooperation Programme is claimed to have significantly developed the procuracy.⁷⁵ Internally, the Implementing International Standards for Criminal Justice in China Project⁷⁶ shows that academic lawyers from three recognised Chinese law schools are concerned to address the practical challenges of bringing domestic criminal justice in practice to a level of international comparability. It is argued that this bilateral capacity building will make the achievement of a 'rule of law' context for criminal justice eventually attainable.  

Essential for the achievement of re-integrative and communitarian justice aspirations in China and internationally, is participation. From a victim perspective in particular, access to the formal institutions of international criminal justice, and thereby a lack of genuine integration is a growing indictment of international criminal justice in practice. Certainly in terms of grassroots engagement with victim's interests there is much that international criminal justice could draw from contemporary Chinese experience. In particular:

(1) The processes of mobilising people to resolve social conflicts through mediation as a central plank of communitarian justice.

(2) Enshrined victim's rights to participate, such as to make accusations, attend court and give evidence regarding the nature and extent of victimisation, question defendants in court, argue the facts with the defendant and have some influence over the investigation. In the Chinese Criminal Procedure Law, however, these rights are based on retributive rather than restorative values.

(3) Article 170 of the Criminal Procedure Law enables victims independently and individually to prosecute crimeswhere their personal and property rights have been infringed. The court may also institute judicial mediation in instances of private prosecution. Under Art 172 the judge has both the role of facilitating the victim and the offender to reach resolution and reconciliation, and if the parties cannot resolve the matter, to act as an arbitrator and to issue a verdict. The importance of this merging of restorative and retributive justice within the discretion of the judge and in the setting of the courtroom cannot be overstated for the future of international criminal justice. While currently in China the discretion of the judge in such deliberations is more directed to avoid formal determinations of the offender's criminal liability rather than compensating the victim or rehabilitating the offender, there is no reason why the development of this model in the international justice setting could not re-emphasise these other legitimate victim concerns.

(4) Article 77 of the Criminal Procedure Law provides a formal opportunity for the victim to institute supplementary civil action against the perpetrator in parallel with the criminal proceedings. Interestingly, the same court will hear both the civil and criminal cases, and again may revert to mediation to resolve the compensation issue. If no agreement can be struck, the hearing of the civil claim is formally heard after criminal liability is settled. There is no provision for mitigating the offender's criminal responsibility (and consequent sanction) if compensation is agreed to. Without this, certainly at the international level, there may be insufficient effective inducement for adequate compensation to victim communities from state perpetrators in particular;

(5) In addition to judicial facilitation through mediation, the offender can be incorporated into the facilitation process.

(6) And crucially, in this cross-over of jurisdictional interests for the victim, the judge determines where his or her role as mediator ends and as adjudicator begins.

The 'danwei' (work unit) system in China is transforming to take account of the new workforce landscape. Neighbourhood and residents' committees remain in com petition with the property management companies with their growing control over housing development in urban areas of China. Neighbourhood interests struggle against commercial priorities in order to maintain cohesive community-level control priorities. With the Chinese urban landscape transforming at an incredible rate over the past few decades, social control mechanisms such as mediation and bang-jiao are experiencing new and largely unexplored pressures. Even so, peoples' mediation (tiao-jie), is being supplemented by administrative and judicial mediation opportunities. The state and the community are being required to incorporate in a mode which was once only a communitarian concern.

This unique case study of the exercise of judicial discretion over retributive and restorative process provides an empirical foundation for projections on transforming international trial decision-making. It also identifies the competing interests at work which may compromise the promise of mediation and other restorative forms within a rights framework that tries to respect individual and community interests.

Beyond China, other examples of procedural innovation open to the enhancement of international criminal justice include:

• Enhance the communitarian 'rights' focus of international criminal justice------- (importance of social order and community justice--------communitarianism and tolerance)
• Contribute to the development of a new international criminal jurisprudence------- (new notions of collective liability and crim.org.)
• Offer procedural options for the incorporation of retributive and restorative justice (Chinese trial mediation)
• Show ways of expanding professional discretion in international criminal justice (Japanese prosecutorial interventions)

In a wider sense of rights re-imagining, the importance of conventionally communitarian cultures such as those which survive at least in the spirit of modern Asian societies, cannot be diminished as an influence in:
 -  Enhancing the wider 'rights' focus of international criminal justice, with the con sequent importance for inclusive social order and community justice, more reliant on communitarianism and collective tolerance;
 -  Contributing to the development of a new international criminal jurisprudence, with unique notions of collective liability, criminal organisation and resultant responsibility;
 -  Offering procedural options for the incorporation of retributive and restorative jus­tice through mechanisms incorporated into the modern trial such as conventional mediation: and
 -  Revealing institutional ways of expanding professional discretion in international criminal justice such as through formalised but flexible prosecutorial early intervention.

These themes assume that citizen participation will be evidence of criminal justice as a communitarian enterprise. Beyond the greater accountability (and consequent legitimacy) which such participation offers, the possibility of advancing victim interests will be more naturally achieved. Criminal justice participation divides between professional and stakeholder interest, and the involvement of the wider community as audience and authority. It is expected through directing international criminal justice to a victim constituency, victim interests will more effectively compete with professional expediency, and wider community participation will temper victim vengeance and contested self-interest. In all of this, international criminal justice, through a communitarian re-imagining will be a more genuine protector of global community rather than the present narrow sectarian hegemony driving international criminal procedure.

The reality of a shift in the risk security focus of globalisation as it moves from the war on terror to more generalisable climatic, health, sustainability, and economic and financial threats will be a search for more accommodating procedural justice models. In many ways, the tiger Asian economies have weathered the pressures of catastrophic economic revolution and adjusted their regulatory frameworks accordingly. With the rest of the world, their criminal justice procedural traditions must engage with global regulatory imperatives in the face of as yet unimaginable climate change: the new risk/security nexus. To equip such crisis regulatory engagement the transformation to global criminal justice must confront and incorporate the:

 -  New, urgent and relentless risk/security agenda with a developing/third world  focus;

• More universalised cross-jurisdictional harm;
• Move from modernisation to economic/market security------role of the Asian 'tiger' economies;
• Recognition of pluralistic regulatory strategies where law may take a less prominent place-------look at traditions where legality is complementary----rights communitarian;
• Challenge to neo-liberal governance model as the single and appropriate paradigm for global justice and world order.