Thailand Law Forum Law Journal - Reformation of the Thai Legal System at the Beginning of the 20th Century: Context and Origin

POLITICAL EXPEDIENCY AND MERCY:
The fact that the name of Rosser was put on the most wanted list along with the most high profiled international terrorists can be an indication that extradition was sought for political purposes, or that the trial against him will be prejudiced. Both the US-Thai Treaty and multilateral agreement on Extradition bar extradition which has been requested for such purposes, of if there are substantial grounds for believing that the person’s position may be prejudiced for race, religion, nationality or political reasons(16). It is true, that these provisions can be constructed narrowly as related to the race, religion, nationality, ethnic origin, political opinions, sex and status of the person sought to be extradited. At the same time, these international provisions can be interpreted broadly as preventing the requesting states from obtaining extradition when being guided primarily by narrow political considerations. It can be established considering political campaign of President Bush at the time of extradition and before it that his political popularity was boosted trough the appeal to tough measures against child pornography business. Therefore, a mere fact that the name of Rosser was put on the most wanted list can be a clear indication of the political side of the prosecution. According to the international rules, if this is the case, then Thailand should be under obligation not to grant extradition, and since Thailand granted it, it can amount to a breach of international law(17).

There were also optional grounds for refusal to extradite which the accused defence could put forward. It is clear from the report that the act of sexual exploitation of the child took place in Thailand. The report does not indicate the nationality of the victim. Further, the materials which were sent to the US were sent from Thailand. Therefore, Thailand was the place where crime took place, and consequently, Rosser could be tried and punished in Thailand, even though it appears that Thai Extradition Act does not prohibit sending a suspect abroad to face trial for committing crimes in Thailand(18).

There were some other grounds which were not heeded by Thai court. It appears that the accused had family in Thailand, and that can be a strong reason why he should be tried and punished in Thailand, and not in the US. There is another optional ground which is recognised in international law on extradition but which found no expression in the US-Thai Treaty. According to the UN Model Treaty on Extradition the requested state may refuse extradition if it considers that, in the circumstances of the case, the extradition of that person would be incompatible with humanitarian considerations in view of age, health or other personal circumstances of that person. These considerations are based on the moral virtue of mercy. This point raises two important questions: Can mercy considerations override the explicit text of the agreement which does not give room for mercy? Secondly, do people like Rosser deserve mercy?

MERCY AND EXTRADITION:
The report indicates that there can be a plea for mercy even to those whose offence can be grossly immoral in the sight of the public. There is nothing which can justify child pornography, child abuse, and one can find little moral justification even fo adult pornography. Both from the report and the indictment it was not clear how grave was the fact of child abuse confessed by the offender. In any case, there can be several points which can mitigate the moral guilt of the offender, and therefore influence the severity of criminal condemnation and sentence.

First of all, before passing a condemnation judgement on Rosser, one has to take into account the present state of pornography in which the crime of Rosser took place. Pornographic materials are easily accessed through the Internet, TV, and the press. Many movies and journals contain what is called ‘soft pornography’, which can be seen by many as rather attractive, and not as disgusting as so called ‘hard pornography’. We live in the world where people can be very vulnerable and easily addicted to pornography. Whatever is the case, the fact is that the addiction to pornographic materials becomes a common thing in the age of information technology. There are reports that people addicted to child pornography went first through the addiction to adult pornography, after finding it not exciting any more, turned to more base forms of it.

We need to understand the context of the crime committed by Rosser, and this context is that he lives in the world filled with pornographic materials, and he is not, if at all, the only one who has to be blamed for it. The US government turning their blind eye on many forms of adult pornography can be seen as contributing to the crime committed by Rosser. It is reported that the US was at the time of the offence and perhaps is still the biggest producer of pornographic materials(19). One cannot win the fight against child pornography without suppressing adult pornography. The easiness of the access to the filthy materials is a mitigating circumstance in the case of Rosser. When there are many, who not only enjoy freedom, but also reap fortunes from pornography business without much hindrance defiling the moral life and integrity of millions of people, imposing a severe legal sanction on one of their victim is in itself an immoral thing.

Secondly, one has to look at the personality of the offender. It appears from his final remark in the BBC report, that he has an unstable psychological nature. The weaknesses of human nature must be taken into account when determining the measure of punishment. It is indicated in the report that he did not try to hide the abuse of a child, and any confession of crime must be considered as a mitigating factor. The issue which is important is whether the offender has experienced a feeling of remorse at what he had done. If so, that must be treated as another mitigating factor. The scant report does not allow us to draw a satisfactory picture of the personality of the offender. However, the guiding principle not only in imposing punishment, but also in deciding on the issue of extradition where the accused faces a much tougher criminal sanction must be the principle of taking into account the personality of the offender.

If, suppose, there are sufficient grounds for mercy towards the offender, and if there are no mandatory or discretionary ground for a refusal of extradition, should then the requested state have a right to deny extradition? In the case of Rosser, there were reasons, if not the mandatory then the discretionary ones, which would allow Thailand to deny extradition. Therefore, the question is hypothetical here. The UN Model Treaty on Extradition allows more space for considerations of mercy. If a bilateral treaty does not offer such space, could a judge find a valid reason for refusing extradition? Thee many examples in the history of law when people appealed to a higher law than the written one. The power of mercy is based on the natural law rather than on the law of treaty. The states must have the right to deny extradition if it is done out of mercy and compassion, although it does not necessarily mean that the states can do it in arbitrary way.

CONCLUSION::
The weakness of every judicial system is the deafness to the considerations of mercy and compassion. In the case discussed above, Thai court has failed to pay due consideration to the mitigating circumstances which would bar the extradition of the accused person to the country where his case has become a political issue. It seems that political expediency in this case has overrun considerations of mercy. This case also shows a deeper problem which is faced by Thai lawyers: it is the utter inability to bring the moral roots of Thai culture in the area of law. The values of loving-kindness and compassion as it is expressed in Thai concept of metta-garuna are deeply rooted in Thai moral world view. These values are needed in every system of law, and this is exactly the point where Thai lawyers must begin learning to be givers rather than receivers. In order to give something valuable to laws of other nations Thai lawyers must first learn to respect and use the moral roots of their own culture.