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การศึกษาพันธกรณีและความพร้อมของประเทศไทยในการปฏิบัติตามอนุสัญญาสหประชาชาติว่าด้วยการต่อต้านการทุจริต...
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Transcript of การศึกษาพันธกรณีและความพร้อมของประเทศไทยในการปฏิบัติตามอนุสัญญาสหประชาชาติว่าด้วยการต่อต้านการทุจริต...
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( ...)
..
2003 UNCAC (United
Nations Convention against Corruption-UNCAC, 2003)
(.) 19 2550
UNCAC ...
. .
...
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(1)
1
1
2 9
:
1. : 10
1.1 10
1.2 13
1.3 - 15 -:
2. 19
2.1 19
2.2 28
2.3 51
3. : 59 UNCAC 2003
3.1 Commission on Transnational Corporations (CTC) 1974 59
3.2 United Nations Office on Drugs and Crime (UNODC) 59
3.3 United Nations Convention Against Corruption (UNCAC) 2003 61
4. 64 APEC ASEAN UNCAC 2003
5. : 75
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3
UNCAC
79
1. 80
1.1 81
1.1.1 81
1.1.2 82
1.2 85
1.2.1 86 .. 1997
1.2.2 97
2. 98 ..2003
2.1 98 .. 2003
2.1.1 99
(1) 99
(2) 101
2.1.2 102
2.1.3 105
2.2 109
2.2.1 109
2.2.2 114
2.2.3 114
4
UNCAC
117
1. 118
1.1 118
1.2 UNCAC 119
1.3 122
1.4 138
1Intro.indd 10 11/17/08 8:37:53 AM
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2. 140
2.1 140
2.2 142
2.2.1 143
2.2.2 144
2.2.3 148
2.2.4 148
2.3 149
2.4 167
3. 169
3.1 169
3.2 173
3.2.1 173 EU
3.2.2 174 8
3.2.3 174
3.2.4 174
3.2.5 175 UNCAC
3.3 176 UNCAC
3.3.1 176
3.3.2 177
3.4 180
4. 187
4.1 187
4.1.1 188
4.1.2 189
4.2 194
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4.3 UNCAC 194
4.4 195 UNCAC
- 2 195
- 3 203
- 4 208
- 5 211
4.5 213
4.5.1 213
4.5.2 219
4.5.3 222
4.5.4 223
4.6 226
5UNCAC 231
5.1 232
5.1.1 233
5.1.2 233
5.1.3 234
5.1.4 234
5.1.5 235
5.1.6 235
5.1.7 235
5.1.8 236
5.1.9 236
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5.1.10 236
5.1.11 237
5.1.12 237
5.2 238
5.2.1 (Chapter 2 Preventive Measures) 238 (1) 238
5 238
6 243
7 246
(2) 248 8 248
9 250
10 261
(3) 263 11 263
(4) 281 12 281
13 285
(5) 290 14 290
291 5.2.2 294
(Chapter 3 Criminalization and law enforcement)
(1) 294
294
15 294
16 296
21 297
(2) () 299
17 299
22 300
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(3) , 301
18 301
19 302
20 304
(4) , 306 23 306
24 308
25 309
(5) 310
26 310
(6) , 311
27 311
28 312
34 314
(7) , 315
29 315
30 318
31 341
(8) 349 32 349
33 352
(9) 358 35 358
(10) 359
36 359
37 360
38 367
39 368
(11) , 368 40 368
41 369
42 370
371
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5.2.3 373 (Chapter 4 International Cooperation)
(1) 374 44
(2) 3861. 386
2. 387
(3) 388 46 388
47 391
48 391
49 392
50 393
5.2.4 (Chapter 5 Asset Recovery) 393
51 393
52 404
53 411
54 419
55 425
56 425
57 426
58 430
59 432
432
5.3 438
5.3.1 UNCAC 438
5.3.2 UNCAC 439
5.3.3 449
6
451
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468
483
1 484
2 , 485
3 .. 2003 491
(United Nations Convention against Corruption-UNCAC, 2003) ()
4 UNCAC 548
5 571
6 581
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1 484 ()
1. The Organization of American States Inter-American Convention Against Corruption (IACAC)
2. Follow-Up Mechanism for the Implementation of the Inter-American Convention Against Corruption (MESICIC)
3. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related Documents
4. The Council of Europes Criminal Law Convention on Corruption
5. The Council of Europes Civil Law Convention on Corruption
6. The Council of Europes Additional Protocol to the Criminal Law Convention on Corruption
7. The 1997 Convention on the Fight Against Corruption involving Officials of the European Communities of Officials of Member States (EU Corruption Convention)
8. The 2003 Communication on a Comprehensive EU Policy Against Corruption
9. The African Union Convention on Preventing and Combating Corruption (African Union Convention)
10. Santiago Commitment to Fight Corruption and Ensure Transparency
11. APEC Course of Action on Fighting Corruption and Ensuring
Transparency
12. ASEAN Integrity Dialogue 2008
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2 , 485
OAS 485
OAS 485
OECD 486
OECD 486
COE 487
EU 487
EU 488
AU 488
APEC 489
APEC 489
ASEAN 490
ASEAN 490
3 .. 2003* 491 (United Nations Convention against Corruption-UNCAC, 2003) ()
4 UNCAC 548
1. ... ( ..) .. .... 549
2. ... ..2535 553
3. .. .... 559
5
6
582 UNCAC 11 2551 9.00-16.30 .
585 .. 2003 12-13 2551
590 26 2551
* UNCAC
.. 2003
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. 05
1
()
.. 2003
() Preparedness of Thailand for the Implementation of the
United Nations Convention against Corruption
1. .
2. .
3. ..
4. ..
5.
6.
7.
8.
9.
10.
11.
12.
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..2550
6,717,150
12 19 2550 19 2551
2
(the Rule of Law)
..2003 (United Nations
Convention against Corruption-UNCAC, 2003)
(Chapter 2 Preventive Measures), (Chapter 3 Criminalization and Law Enforcement),
(Chapter 4 International Cooperation)
(Chapter 5 Asset Recovery)
..
2003 (UNCAC) 9 2546 (..2003) (.)
19 2550
3 1. ... 2. ...
..2535 3. ...
.. ....
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(Integrity)
UNCAC
UNCAC
(ASEAN)
UNCAC
( ...)
UNCAC
...
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Abstract
Corruption has posed a lot of problems and threats to the stability and
security of the societies, undermining the institutions and values of democracy,
ethical values and justice and jeopardizing sustainable development and the Rule of
Law, destroying the righteousness of government and causing a widespread distrust
in the politicians. Besides, it has been detrimental to the democracy regime as it is
the cause of revolution or coup detat. There are various modes of corruption
including extorting money from people from all walks of life, from the poor up to
the massive corruption of politicians and business men or the high-ranked officials
involving people overseas, the strategic corruption which becomes transnational and
far more complicated than it was in the past.
UNCAC 2003 is the first international law concerning anti-corruption
promulgated globally covering all countries worldwide. The substance of this
Convention embraces measures and criteria to suppress corruption which are
Preventive Measures in Chapter 2, Criminalization and Law Enforcement in
Chapter 3, International Cooperation in Chapter 4 and Asset Recovery in
Chapter 5 which is a new issue significant to suppress transnational corruption or
is full of complication.
Thailand signed this UNCAC 2003 on 9 December B.E.2546 (2003) without
having ratified it yet. However, the conference of the National Legislative Assembly
(NLA), on 19 December B.E. 2550 (2007), has given its approval for this
Convention in accordance with a resolution of the Cabinet to approve 3 relevant
draft Acts, enabling the implementation of the obligations under this Convention,
before becoming one of the State Parties to this Convention: 1. the Act to amend
the Thai Penal Code; 2. the Act to amend the Act on Mutual Assistance in Criminal
Matters B.E. 2535 (1992); and 3. the Act to amend the Proceeds of Crime Act.
Although the enactment of such Acts some obligations under UNCAC may
still be unable to be implemented due to the inadequacy of the enabling legislation
e.g. with regard to extradition and assets recovery Thailand could ratify this
Convention to become its Party right away without problems on international plane.
Given that to achieve the goals and objectives of this Convention, a worldwide
cooperation of as many countries as possible is an impetus. Hence, the provisions of
this Convention are flexible and without sanctions for their breach or violation and
permit a withdrawal of the State Party.
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To get to be a State Party to this Convention will yield a lot of betterment and
benefits to Thailand in some other aspects which are to help uphold institutions of
democracy, to enhance ethical values, to help create an idea or value to uphold
integrity so that people can attain a real justice and to promote the Rule of Law
pursuant to the principles and purposes of this UNCAC. This will simultaneously
help keep our economic stability and national security, help rectify an image of the
Thai nation concerning the problem of corruption which is currently at its lowest
deterioration. Besides this also help provide our public entities a chance to
academically get international assistance and chance to exchange information about
corruption problems with other State Parties. Thailand consequently should set
policies and strategies for the implementation of the obligations of the UNCAC 2003
by means of co-operation with other countries of the same status playing active
role amongst countries in the ASEAN Group which Thailand is also a member of in
order to generate principles that all can multilaterally accept.
Therefore it is recommended that the government expedite its ratification to
become State Party to this Convention after having enacted the aforementioned
related Acts. This is because Thailand is ready to promptly implement the core
obligations under this Convention (UNCAC). Moreover, it is essential that measures
to prevent and suppress corruption be developed and concretely strengthened to
meet such obligations. The Office of the National Counter Corruption Commission
(NCCC), which is the major national agency responsible for fighting against
corruption, should be the central authority for the coordination and preparedness of
the country in respect of human resources and budget for the implementation of the
obligations under UNCAC and open to all related parties, especially those of the
civil society and the media, to actively participate in the fighting against corruption.
The moment is therefore propitious for the Office of the National Counter Corruption
Commission (NCCC) to improve its working system and urgently call for the
amendment of the relevant domestic laws and measures to keep abreast with the
changing ambiance and circumstances in our country.
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()
.. 2003
..2003 (United Nations Convention against Corruption-UNCAC, 2003) 9-11 2546 14 ..2548 (..2005)
124 1 9 2546
UNCAC
1 http://www.unodc.org/unodc/en/treaties/CAC/signatories.html ( 24 2551)
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..2003
()
1.
..2003
(UNCAC)
..2003
(UNCAC)
3
(mandatory)
(optional requirements: obligation to consider)
(optional measures: measures States
parties may wish to consider) UNCAC 4
1.1 (Chapter 2 Preventive Measures)
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()
1.2 (Chapter 3
Criminalization and law enforcement)
(bribery in the private sector) (trading in influence) (illicit enrichment)
(embezzlement of property in the private sector)
(laundering of proceeds of crime)
(concealment) (obstruction of justice)
1.3 (Chapter 4 International Cooperation)
(mutual legal assistance)
(extradition)
double dual
criminality
1.4 (Chapter 5 Asset Recovery)
(value based)
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..2003
()
2.
UNCAC
..2003
(UNCAC) 9 2546 19
2550 4 2550
.. 2003
(reservation) In accordance with Paragraph 3 of Article 66 of
the convention, Thailand does not consider itself bound by Paragraph 2 of the same
Article.2 66 3 UNCAC 66
2
2
(defeat objective and purposes)
(.) UNCAC
19 2550
3
1. ...
(
)
2 0503/22939 .. 2003 4 2550.
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()
2. ..... 2535 (
)
3. .. ....
UNCAC
(flexibility)
3
UNCAC
(Chapter 3 Criminalization and
law enforcement), (Chapter 4 International Cooperation)
(Chapter 5 Asset Recovery)
(Chapter 2 Preventive Measures)
.
190
..2550
3
190
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-
..2003
()
3.
UNCAC
UNCAC 4
, ,
(Common Law)
(Civil Law)
4
1)
2)
3) UNCAC
(Whistleblower Protection Law)
, (Freedom of Information
Law)
4)
1Intro.indd 6 11/17/08 8:37:55 AM
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()
5)
6)
)
(Organization for Economic Co-operation and
Development-OECD) (Organization of American States-OAS)3
(Foreign Corrupt Practices Act: FCPA)
(Special Prosecutor or Independent
Counsel) Independent Counsel Ethics in Government
Act of 1978 and the Ethics in Government Act
)
Public Bodies Corrupt Practices Act 1889
3
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..2003
()
2
Proceeds of Crime Act 2002 Serious Crime Act 2007
UNCAC Proceeds
of Crime Act 2002 (valued-based)
(property based)
UNCAC
Serious Organised Crime
Agency (SOCA)
...
)
, OECD
UNCAC
(the Rule of Law)
1Intro.indd 8 11/17/08 8:37:56 AM
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()
)
3
,
civil
ombudsmen 1980 civil watchdogs
,
4.
UNCAC
.. 2003 (United Nations Convention against
Corruption-UNCAC, 2003-UNCAC)
4
4 (Transparency International) (Corruption Perceptions Index - CPI) ..2007 (..2550) 84 2549 ( 63), 2548 ( 59), 2547 ( 64)
( )
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..2003
(0)
(Integrity)5
(the Rule of Law)
UNCAC
(mega project)
UNCAC OECD
OECD
,
UNCAC
(.) 19 2550
5 Integrity
Integrity strength and firmness of character, uncompromising adherence to a code of moral values moral uprightness
Integrity integer wholeness , Integrity : Stephen L. Carter, Integrity (New York: Basic Books, 1996), p. 7.
( , ( : .., 2547), 13.
1Intro.indd 10 11/17/08 8:37:56 AM
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()
UNCAC
4
1.
(
)
UNCAC
(International Regimes) UNCAC
(norms)
(monitoring
system) (enforcement)
UNCAC
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-
..2003
()
OECD, AU, OAS, APEC
(Trans-regional Cooperation)
(Interpol), (World Bank),
(ADB)
APEC
-
UNCAC 2003
(International)
(Transnational)
(dynamics)
(social
space)
(International Non-Governmental Organizations: INGOs)
UNCAC
APEC
ASEAN
(ASEAN Community)
(Toward ASEAN Way of Integrity)
(Toward Thai Way of Integrity)
2.
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()
(safe haven)
14
dual
double criminality
44 4, 5 6 UNCAC
(asset recovery)
(civil
criminal approach)
Common law Civil law
Civil Law
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..2003
()
(probabilities)
2
(direct
recovery)
(property based confiscation)
(value based confiscation)
3.
3.1
(1)
1) (...)
..
2550 246
2) ..., ...
1Intro.indd 14 11/17/08 8:37:57 AM
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()
(2)
1) ...
...
... 7
2) .
.
3)
(3)
1)
27
28
2)
3)
4) .. 2550
1Intro.indd 15 11/17/08 8:37:57 AM
-
..2003
()
5)
( 30)
6)
(4)
1)
2)
(whistleblower protection law)
...
3)
4) .. 2540
1Intro.indd 16 11/17/08 8:37:57 AM
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()
5)
6)
... .. 2535
3.2
(1)
(2) ,
1)
.. 2542
( 75 )
2)
(Universalerechtsgut)
(3) ,
1) .. 2550
CTX
2)
2.1
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..2003
()
. .
2.2
...
2.3
2.4
State Capture
3)
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()
3.3
(proceeds of crime)
2 1) (value based) 2)
(property based)
UNCAC
3.3.1 5
UNCAC
.. 2535
3.3.2
...
.
3.3.3
UNCAC
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..2003
(0)
(property based)
3.3.4
3.3.5
3.3.6
4.
4.1
,
, , ,
(corporate
governance)
4.2
4.2.1
UNCAC
1Intro.indd 20 11/17/08 8:37:58 AM
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()
4.2.2
4.3
4.3.1 watchdog
4.3.2 (investigative reporting)
4.3.3
4.3.4
4.3.5
4.4
4.5
( ...)
UNCAC
1Intro.indd 21 11/17/08 8:37:58 AM
-
..2003
()
...
(1)
(2)
(Whistleblower)
(3)
(4)
..2003
...
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()
ExecutiveSummary
Introduction
Anti-corruption is currently regarded the national agenda and global issues
which many countries have an interest in and are concerned about. Organizations
and international cooperation groups, for the first time, initiated laws establishment
and international co-operation regarding the suppression of corruption in various
aspects. In spite of such laws and agreements made, there is still an obstacle to
suppress corruption in its contents as it can merely be regionally applied and is
unable to practically solve the problems of transnational corruption inherent in the
free capitalism system which allows illicit proceeds of crime to be transferred. The
modes of corruption are also far more complicated than those in the past, for
example, the strategic corruption which the administration seeks to set policies,
passes a resolution, or enact law to yield unlawful benefit to some particular
groups of interest. Therefore, we take this UNCAC 2003 to scope the regime of law
in all countries worldwide to rectify all those shortcomings as well as to mutually
generate standard principles of law to concretely enhance extensive international
co-operation.
The members of the United Nations firstly signed the United Nations Convention
Against Corruption (UNCAC), 2003 from 9 to 11 December 2003 in Mexico and
this Convention entered into force on 14 December 2005. This Convention is the
first international law in the universal level to suppress corruption. There are, to
date, 124 States Parties6 to this Convention, that Thailand signed on 9 December
2003, without having ratified it yet, but has the policy to adhere thereto. It is, in
effect, currently in the process of making preparations for such purpose. It is, thus,
essential to undertake a research work on the preparedness of Thailand to become
Party to this Convention, whose obligations require an implementation or being taken
into consideration. Furthermore Thailand will be entitled to the rights and various
6 http://www.unodc.org/unodc/en/treaties/CAC/signatories.html (data given on 24 September 2551)
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..2003
()
benefits from being State Party to this Convention. It is also a good opportunity for
Thailand to amend its relevant domestic laws and policies in keeping with the
international standard as well as to set up appropriate measures to efficaciously
prevent and suppress corruption.
The feasibility studies of the preparedness of Thailand to become State Party
to this Convention thus have to address various issues as follows:
First, whether the obligations under this Convention impose excessive burdens
for Thailand compared to the benefits that it could derive from its adherence to this
Convention, the outcomes of which will also be the answer to the second question
on the advantages and disadvantages of being State Party to this Convention. The
third and last issue to address is related to the appropriateness and scope of the
reservation to make, and the steps and process to take under Thai law for
becoming State Party to the Convention, especially in light of the current
Constitution, whose provisions substantially deviate from the past practice, which
could, in practice, be a hurdle to such process.
1. SubstanceofUNCAC2003
The substance of UNCAC 2003 includes comprehensive measures and regimes
to systematically fight against corruption, and particularly new issues regarding
asset recovery therein provided, which have never before been stipulated in any
related international instruments. This Convention focuses on the cooperation of all
sectors involved: public, private, civil society and the media, which largely differs
from in any other international instruments that focus only on certain particular
aspects. One of the fundamental principles of this Convention is that States Parties
must criminalize various deeds that this Convention aims to prevent and suppress,
which encompass both direct and indirect corruption, and petty corruption as well
as grand corruption that involve both people in public and private sectors.
Furthermore, to ensure effective implementation of this Convention in respect of
transnational corruption, the Convention requires that its States Parties cooperate
with each others, and has also forged devices to monitor the observance of such
obligations.
The obligations under this Convention have various levels of binding force are
mandatory, optional requirements: obligation to consider and optional measures:
1Intro.indd 24 11/17/08 8:37:59 AM
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()
measures States Parties may wish to consider. The core provisions under this
Convention may be divided into 4 groups as follows:
1.1 Preventive Measures (Chapter 2)
The content in this chapter is comprehensively about preventive measures in
both public and private sectors e.g. public procurement, transparency in giving
financial supports to political parties, measures to safeguard the independence and
strengthen the codes of conduct for the members of the judiciary and the public
prosecutors, measures to promote cooperation between public sector and related
private sectors, measures to prevent the conflicts of interest of ex-civil servants or
public officials after resignation or retirement, measures to support participation of
the civil society to openly disseminate information to the general public without
disclosing the identity of the corruption reporting persons. The obligations in this
Chapter cover those corruption in the public and private sectors and in the civil
society, which are mandatory to be implemented and those which are optional that
the States Parties are able to choose to accept or not to accept.
1.2 Criminalization and Law Enforcement (Chapter 3)
The measures in this Chapter are mostly consistent with the Thai legal system
but the new significant measure is that it requires all State Parties to criminalize
the following deeds: bribery of foreign public officials and of officials of public
international organizations, either directly or indirectly; the solicitation or
acceptance of an undue advantage by such officials; and intentional embezzlement,
misappropriation or diversion of property by such officials. It requires State Parties
to establish as criminal offences, the bribery in private sector which include trading
in influence, illicit enrichment, embezzlement of property in the private sector,
laundering of proceeds of crime, concealment of preperty, obstruction of justice as
well as the provision of longer statute of limitations period or suspension of such
period if the offender has evaded the administration of justice and thus no
prosecution can be done in any State Parties.
1.3 International Cooperation (Chapter 4)
The substance of this Chapter requires the State Parties to afford one another
the measures to give mutual legal assistance in investigations of and proceedings in
civil, criminal, and administrative matters relating to corruption, or to grant
extradition of which this Convention requires the State Parties to extradite the
1Intro.indd 25 11/17/08 8:37:59 AM
-
..2003
()
person who is the subject of the request for extradition to each other even if the
offence which is the legal basis for extradition is not an offence in the requested
State Party. Therefore, according to this Convention, States Parties are requested
to exempt the principle of Double or Dual Criminality. There are also some other
measures to assist each other with respect to investigations, prosecutions, and
judicial proceedings in relation to other offences covered by this Convention.
1.4 Asset Recovery (Chapter 5)
Under this Convention, the State Parties shall afford one another the
measures of cooperation and assistance in the matter of asset recovery as per the
value-based confiscation, as well as inspection of clients data by financial
institutions and the real person benefited from such transfer including measures to
prevent and tracing the asset recovery or proceeds of crime. One importance of
which is the cooperation amongst the States Parties to recover assets transferred
between those State Parties including the freezing and seizure of such assets or
property at the request of other State Parties. This Convention requires that the
State Parties consider taking measures necessary to allow confiscation of assets or
property of other offences covered in this Convention through civil action without
exercising the criminal prosecution including imposing the offender to be responsible
for compensation or damages to the State Party receiving damages from such
criminal offences.
2.
ObligationsofThailandtoImplementUNCAC2003
Thailand already signed to agree to this Convention on 9 December 2003
without giving its ratification. But later on 19 December 2007, by a resolution of
the cabinet given on 4 December 2007 at the request of the Foreign Ministry to
bring this Convention to the approval of the National Legislative Assembly (NLA),
the Thai translated version of this Convention, with its English version as additional
document, was presented to their consideration with the reservation stated in
Instruments of ratification that In accordance with Paragraph 3 of Article 66 of the
Convention, Thailand does not consider itself bound by Paragraph 2 of the same
Article. The paragraph 3 of article 66 of UNCAC allow the State Parties to make
reservation not to be bound by paragraph 2 of this article which allows any dispute
between two or more State Parties concerning the interpretation or application of
1Intro.indd 26 11/17/08 8:37:59 AM
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()
this Convention that cannot be settled be submitted to arbitration and be referred to
the International Court of Justice respectively. Thailand thus does not consider itself
to be bound by paragraph 2 of this article. This Convention furthermore allows the
States Parties to propose an amendment in the future to come or to cease to be a
State Party by denouncing this Convention. Therefore, this Convention does not in
accordance with the Thai law have a binding force for implementation, only its
obligations are subject, with bona fide effort, to be signed for ratification and the
State Parties must not, by any acts, defeat object and purposes of this Convention.
The National Legislative Assembly (NLA) has afterwards approved the
ratification to be a State Party to this Convention on 19 December 2007 in
accordance with a resolution of the Cabinet to approve 3 relevant draft Acts,
enabling the implementation of the obligations under this Convention, before
becoming one of the State Parties to this Convention
1. The draft to amend the Thai Penal Code (adding the use of terms of
foreign public officials and officials of public international organizations,
as well as criminalizing offences towards public officials and the abuse of
functions or position relating foreign public officials or officials of public
international organizations, adding the suspension of statute limitation period
in case of an offender evaded overseas or have such statute limitation
period restart after being back for prosecution and have the administrative
offences added)
2. The draft to amend the Act on Mutual Assistance in Criminal Matters B.E.
2535 (1992) (adding the principles of tracing, freezing, and confiscation of
property transferred overseas as per the value based) and
3. The draft to amend the Proceeds of Crime Act .. substance thereof
focusing on measures to facilitate asset recovery
Though Thailand may be unable to implement some obligations of this
Convention due to the fact that there is no enabling law, policy or recognized
measures in our legal system, to give ratification and immediately become a State
7 Document NR. 0503/22939 to the President of the National Legislative Assembly concerning the United Nations Convention Against Corruption (UNCAC), 2003 dated on 4 December 2007.
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Party to this Convention in the international level can be done with no problem. This
is because to achieve the goals and objectives of this Convention, it is necessary to
get extensive cooperation from many countries worldwide. Therefore, the provisions
in each article of this Convention are of flexible principles and content with no
sanctions for a breach or violation to this Convention but instead permits any State
Party to denounce this Convention.
Consequently should we be able to enact those 3 draft Acts aforementioned to
implement this Convention, Thailand is thus ready for implementation of core
obligations required by this Convention: Criminalization and law enforcement in
Chapter 3, International Cooperation in Chapter 4, and Asset Recovery in Chapter 5.
However it is a matter of urgency that Thailand amend the preventive measures
provided in Chapter 2 to concretely strengthen the hold on such obligations
required. This is because in the past we have emphasized more to suppress
corruption to cope with the problems of corruption. Moreover the public agencies
also lack adequate cooperation or may receive interventions from the government
and the politicians. The public sector does not give importance to the role of the
civil society and the independent media which is a key factor to success of the
foreign public sector to tackle the problems of corruption.
With regard to the legal problems in the adherence of Thailand to this
Convention the important issues to consider are that: although the National
Legislative Assembly has already given its approval for Thailands adherence to the
Convention by ratification, there might still be some problems, due to the fact that
the B.E. 2550 Constitution has set up several conditions and procedure for the
conclusion of international treaties, which have rendered the conclusion of several
categories of treaties so complicated and in some cases virtually impracticable, e.g.,
with regard to the organic law prescribing the steps and procedure for the
conclusion of the treaties which has to be enacted in compliance with paragraph 5
of this Article, but to date has not yet been done, so the conclusion of treaties
which has to be done in compliance with such a Law, may be unconstitutional; and
that the ratification to become Party to this Convention as soon as the 3 Bills,
which amend the relevant laws to enable the implementation of the core principles
of the Convention have been enacted, could be done without problems on
international plane but it may not be the case on internal plane given that not only
the process in securing an approval of the Nation Legislative Assembly was not so
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constitutional, because no public hearing has been organized and no negotiation
framework has been submitted for the approval of the National Legislative Assembly
in compliance with Article 190. In regard of the non-submission of the negotiation
framework, it may be justified however by the fact that no such requirement could
be complied with in the case of multilateral Conventions.
3 ThePreparednessofThailandtoCurbCorruptioninaccordancewithUNCAC
2003BasedonStudiesabouttheBestPracticesinOtherCountries
The researchers have chosen 4 countries involved in this Convention, they
are the United State of America, the United Kingdom, Germany and Japan of which
the first two countries are of the Common Law system that are already the State
Parties to this Convention while the latter two are of the Civil Law system that
already signed this Convention and are in the same status as does Thailand.
Though these 4 countries are of developed world, they have greatly influenced
Thailand in regard to its legal history and its legal system as well as having been
significant business partners with Thailand. Therefore, it is most beneficial to study
and analyze their prominence in diverse aspects in order to make it the models for
our preparedness to be a State Party to this Convention.
From our studies and analysis of laws, policies and law enforcement
agencies of these 4 countries, we can synthesize some typical characteristics, in
respect of the role of politicians, civil servants, businesses and the civil society, as
below :-
1) The independence of law enforcement authorities e.g. judges and public
prosecutors, police and other public bodies responsible to prevent and
suppress corruption, both in its form and content, especially that of the
prosecution service which enjoys true independence i.e. the Japanese
prosecutors independence have been customary observed and maintained
up to date without any interventions from other sections e.g. politicians,
businesses, or other persons.
2) The extensive participation of the civil society into the prevention of and
fight against corruption. This is a key success factor in detecting
accountability of politicians and officials in the public agencies.
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3) Many laws are consistent to the obligations of UNCAC e.g. the
whistleblower Law that aims to promote the participation of the civil society
to fight against corruption, the Freedom of Information Act amended to
balance the use of discretionary power of public officials and to protect
whistleblowers from being charged with any offences.
4) An enhanced scrutiny and inhibition of acts of corruption in private sector
is significantly applied. Relevant measures of laws are particularly applied
with regard to relationship amongst businesses, politicians, and high raking
officials.
5) The giving of importance to the prevention of corruption and cultivation to
suppress corruption to people since young age, and the dissemination of
information to the general public.
6) The reform in the bureaucratic system to promote civil servants and public
officials to uphold the code of ethics by proposing legislation or proposing
an amendment to the Civil Servants Act to objectively enforce rules and
regulations concerning codes of conduct for civil servants including the
appointment of the independent committee to perform such functions.
The best practices of each country to be applied to Thailand is observed as
below :-
A. The United States of America
USA has greatly influenced the idea to establish many international
conventions relating the suppression of corruption and has been a State Party to
relevant conventions in cooperation groups e.g. the Organization for Economic Co-
operation and Development (OECD), and The Organization of American States
(OAS).8 One of the most recognized US laws concerning transnational corruption is
the Foreign Corrupt Practices Act: FCPA. USA gives importance to the amendment
of laws directly relevant to fighting corruption and to the reformation of related
authorities, policies and other relevant laws.
8 The Organization for Economic Cooperation and Development (OECD) comprise members of industry or developed countries of which its objectives are to boost and strengthen cooperation in economic development amongst the member countries for effective market economy, to expand free trade and industrial development to the member countries and the developing countries as well as promoting efficiency and transparent management.
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The researchers consider that special prosecutor or independent counsel of
the USA provided in the Independent Counsel Ethics in Government Act of 1978
and the Ethics in Government Act should be brought as a good model to propose
the Committee of Independent Prosecutor to perform the duties of the Attorney
General for all corruption cases involving politicians and high raking officials based
on some measures or principles of the Independent Counsel Act applied to Thai
legal system and problematic situation in Thailand.
B. The United Kingdom
The United Kingdom is another country giving importance to corruption
problems for more than a century from its enactment of the Public Bodies Corrupt
Practices Act 1889. This Act makes the active or passive bribery of members,
officers or servants of a public bodies a criminal offence and makes any person
corruptly gives, or offers to give an undue advantage to such officers or servants
of public bodies an offence. The prominence of this Act to be taken into
consideration for the application of Thai law is the recommendations for the asset
recovery of which there are two significant statutes relating this matter i.e. the
Proceeds of Crime Act 2002 and the Serious Crime Act 2007, the provisions of
which cover the matter of asset recovery from all the serious crimes like drugs
dealing, money laundering and any corruption law pursuant to the obligations of
UNCAC. The Proceeds of Crime Act 2002 provides important principle of the
value-based confiscation, without consideration of whether the assets or crime
proceeds have been transformed or converted into, while Thai law comply with the
property-based confiscation and is therefore inconsistent to the obligations of UNCAC
observing that of the valued-based.
Furthermore, assumptions of the criminal lifestyle or conduct of the
defendant regarding the confiscation of assets or property are provided. The
proceeding of these criminal confiscation cases is different from that of the general
criminal offences, with the support of an intelligence-led agency and effective
mechanisms to recover the proceeds of crime called Serious Organised Crime
Agency-SOCA. Therefore the researchers concluded that we should apply these
laws concerning the confiscation of property as guidelines for an amendment of
some Thai legislation. However, it is recommended to enact a special law
concerning the confiscation of property and include its concept or principle to other
related laws to meet the obligations of this Convention. Besides, there should be an
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establishment of a special agency, independent from the government or political
powers, to recover the proceeds of crime. This can be either be it a division or a
new one in the Office of the National Counter Corruption Commission (NCCC).
C. Germany
Germany becomes a State Party to many international Conventions concerning
the combat of corruption and unlawful acts as a member state of the EU and of
OECD. Therefore Germany has been long prepared prior to signing this UNCAC
coupled with great achievement in combating internal corruption as they have
adhered to the Rule of Law and good governance policy. Law enforcement is
seriously applied by its public agencies. There have some amendment to the Law of
the German Penal Codes and drafts to improve laws related to the combat of
international corruption are proposed so as to implement the obligations of UNCAC
to prevent and combat the transnational corruption in the business sector through
the cooperation of domestic companies and that of transnational companies.
The researchers infer that Germany seeks to focus on developing efficiency of
its running agencies or empowering its legal authority to perform their duties which
is a lot different from the Thai concepts that aims to establish a new agency but
still under the direction of the government or politicians which makes Thailand end
up with incapability to practically solve these corruption problems. Therefore, it is
recommended to consider the application of these practices as guidelines for
Thailand.
D. Japan
Japan, in regard to its legal history, has had close relationship with Thailand
and its Japanese uniqueness shares that of the Asian characteristics in which the
types of corruption, very similar to Thailand, comprise 3 parties: politicians, high
raking officials and businesses. The prominence of Japan to be analysed for a good
example for Thailand is the strength in their justice system, the independence of the
law enforcement authorities especially the Japanese public prosecutors who are
free from influence or direction of the government, politicians and businesses.
Besides, the civil society also has a crucial role on corruption detection of officials
in public agencies, of politicians in the regional and national levels and is highly
acknowledged by society and the public sector. The Japanese named this civil
society network civil ombudsmen since 1980s as it serves as civil watchdogs
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to watch over the works of the regional administrative bodies and all public
agencies. Should there be any unlawful administration or any kind that is bound to
be corruption, this civil ombudsmen will take legal action to the involved officials.
The researchers advise that we apply these Japanese measures of the
corruption prevention to our anti-corruption laws, either the amendment of Freedom
of Information Act, the public procurement regulations and the reform ethical or
merit system of Thai bureaucratic administration especially the urge to set up of the
national ethics committee of public officials as per the Japanese model which
should, in addition, expand to cover the ministers, the senators, the members of the
House of Representatives and other political officials as well as proposal to enact a
new law to protect the persons disclosing information about corruption in either
public or business sector and person in general. We also need to promote the role
of the civil society to cooperate closely with the public agencies.
4. PolicyRecommendationsandMeasuresforthePreparednesstobeaState
PartytothisUNCAC
From the result of our studies about the Obligations and Preparedness of
Thailand for the implementation of the United Nations Conventions Against Corruption
(UNCAC) 2003, the summary is that to be a State Party to this Convention will be
a tremendous advantage to Thailand as it will help lessen damages caused from the
problems of corruption in many levels, give better image of Thailand with respect to
corruption which is currently at its worst ranking9 and help enable Thai public
agencies to academically get technical assistance as well as getting cooperation on
information exchange relating corruption from other State Parties.
9 The Organization of American States (OAS) is a multilateral forum for strengthening cooperation on international relations in the America Continent with the aims to strengthen democracy and security in the region, to peacefully solve the conflicts, and to promote democratic values.
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Some other advantages obtained from being a State party to this Convention
for Thailand is to help uphold the institutions and democracy values, to promote
Codes of Conduct, to create social value of adhering to integrity10 and to help
people access genuine justice, all of which promote sustainable development to the
Rule of Law as per the principles and purposes of UNCAC. Besides, at the same
time it helps keep economic stability and national security. And with regard to the
matter of mega projects for public services, this will help enhance confidence and
trust in foreign direct investment in our country as well as helping to solve the
complicated problems of corruption related to confiscation of property or proceeds
of crime in the transnational corruption. Moreover, this Convention will help solve
the problems of human rights violation should the whistleblower protection law to
be enacted so as to protect a person disclosing information about corruption and
the witness protection to be improved. This will concretely strengthen the civil
society and encourage them to participate more in combat the problems of
corruption. Besides, some part of the contents of UNCAC that are consistent to
relevant OECD Conventions will also help Thailand more chance to be a member of
OECD in the future.
Though to be a State Party to UNCAC may somewhat impose some obligations
to Thailand e.g. duty to respond to the request of other foreign State Parties
10 Transparency International, the global civil society organization leading the fight against corruption, has made a report on Corruption Perceptions Index-CPI in 2007, finding out that Thailand is placed at 84th on the list which is likely to be lower than where it was in 2006 (at 63rd ), 2005 (at 59th), 2004 (at 64th).
The countries with the most corruption will come in the lowest place. Integrity according to Professor Tanin Kraivixien, a member of the Current Privy Council,
means firmness, trustworthiness, accountability, adherence to principal and righteousness. In brief, an adherence to the Rule of Law, with the supplementary explanation:
English dictionary has it that integrity means strength and firmness of character, uncompromising adherence to a code of moral values and moral uprightness
Integrity is from the word integer in Latin which means wholeness or completeness, full number of which its profound meaning conveys that man needs to have integrity to be a full man - that is he has to possess integrity as a personal moral value : Stephen L. Carter, Integrity (New York: Basic Books, 1996), p.7 referred from Professor Tanin Kraivixien, Morality and Ethics for the Governors
(Nonthaburi: Ethics Promotion Centre, Office of the Civil Service Commission, 2004), p.13
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regarding the asset recovery, or to exchange information about corruption and etc.,
the State agencies need to be ready for preparation of human resources, fiscal
budget, and cooperation between domestic and foreign government agencies
including the possibility for Thailand to be supervised from other State Parties to
promote mutual and multilateral co-operation to fight against corruption.
However, with regard to aforementioned advantages and disadvantages, the
researchers concluded that to give ratification to be a State party to this
Convention will be the great opportunity for Thailand. Consequently, it is advised
that the government accelerate the process of the ratification to be a State Party to
this Convention, after having amended the related domestic laws to comply with this
Convention, as per the approval of the National Legislative Assembly (NLA) given on
19 December 2008. Despite the fact that we may not be able to implement some
obligations due to the inadequacy of enabling legislation, to give ratification to be a
State Party to this Convention in the international level is thus of no problem and
can be done immediately because to achieve the purposes and objectives of this
Convention, international cooperation is extensively required. The provisions in each
article of this Convention are therefore of flexible principles and contents with no
sanctions for a breach or violation to this Convention. On the contrary, it permits a
State Party to denounce this Convention.
To achieve the objectives of this Convention to combat corruption or not
depends on the cooperation from all parts and sectors, no matter public, business,
civil society or the Press. The public agencies need to particularly focus more on
the fight against corruption, to improve working methods amongst public agencies
and to manifest proper mechanisms to prevent interference from the government,
politicians, public officials and businesses by amending domestic laws, policies and
other measures related to corruption as these are factors for success to combat
corruption in many countries.
Summary and recommendations in this research therefore are categorized into
4 subject matters: (1) Experience in coping with corruption problems as per the
international cooperation framework for all State Parties (2) International laws to
preventive and combat corruption (3) Preparedness of Thailand to be a State Party
to this Convention (4) Recommendations for organizations or related public bodies,
as below substance
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1. Experience in coping with corruption problems as per the international
cooperation framework amongst all nations and guidelines for Thailand
With regard to international cooperation to prevent and combat corruption, it
is found out that there has been a development in its principles and practices. It has
been initiated at the regional level before it becomes the United Nations Convention
against Corruption which in a broad level that may be called global or almost
global (countries of economic power e.g. USA, European Union, China, India, Russia,
Japan and etc. are all part of this Convention in one or another level). Therefore it
is likely that to be a State Party to this Convention will enable Thailand to be, for
the first time, part of the International Regimes about the combat of world
corruption. This Convention is also considered international regimes to set
regulations, practices, norms, principles and other measures for national societies
and is fully prepared in many ways due to its having the United Nations (UN), an
international organization, to monitor and follow up the enforcement as per the
obligations stipulated in this Convention.
UNCAC is therefore seen as an international regime to fight against global
corruption which are linked and facilitated to the regimes of diverse organizations
and regions. Result from this research is obvious that this Convention is a regime
to combine all countries of different development levels and of different regions of
the world whilst each region and each economic co-operation group itself tries to
develop its own international regimes for this corruption matter, e.g. OECD, AU,
OAS, APEC, based on other international laws and regimes related and with the
Trans-regional Cooperation between all parts of the world and the international
organizations such as Interpol, the World Bank, ADB and foreign Private Developing
organizations. Thanks to this fact, the implementation of this Convention to real
practices is then possible with respect to different conditions of each country, each
region and each group of different development levels though being the same kind
of organization and in the same region. For example, the case of APEC, a co-
operation group in Asia Pacific, comprising countries and economic groups in the
named area which Thailand is also a member of, has the same kind of counter
corruption activities based on the principles of UNCAC 2003 and its practices of all
regional cooperation.
International regimes and cooperation within regional organizations of all
regions are open and help to create International and transnational co-operation
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that is flexible to make diverse countries and entities to gradually participate into
this anti-corruption activity with regard to their factual circumstance. Anti-
corruption activities in the international level up to date have been diverse, different
and of dynamic nature, giving more chance to all countries to adapt themselves to
its real setting as well as opening more social space to all sectors especially the
civil societies in national and transnational levels such as International Non-
Government Organizations (INGOS) up to community-based organizations as per the
preamble of this Convention.
Therefore strategies and tactics to join this UNCAC in the aspect of
international cooperation are needed to be taken into consideration i.e. Thailand
should consider choosing the strategies to implement obligations under this
Convention and to give cooperation, both mutually and multilaterally, based on
diverse cooperation frameworks especially those of Asia and Pacific regions of
APEC. Thailand needs to particularly observe the ASEAN Cooperation framework or
cooperate with countries of the same level of economic, social and cultural
development and conditions which will help facilitate working and thinking together
to create ASEAN Community in order to promote the way towards ASEAN Way of
Integrity or towards the Thai Way of Integrity.
2. International Laws to Prevent and Combat Corruption
The most important international cooperation, in regard to the prevention and
combat of corruption, is the matters relating extraditions and asset recovery.
Without such co-operations, there may happen a safe haven for both the
defendants and the proceeds of crime which will enable the person committed
criminal offences to use this legal loophole to evade and enjoy the benefit obtained
from such assets or property in a foreign country.
With regard to extraditions, the main points are:
First, Thailand has to date concluded extradition treaties with altogether 14
countries, which are fundamentally similar in substance, but comprise nonetheless
some differences, which are not identical in all of them. Besides certain
commitments under such bilateral treaties might cause practical problems for
Thailand in the implementation of this UN Convention due to the inadequacy of its
enabling legislation, thus requiring their amendments, or enactment of the
implementing legislation for their shortcomings such as the possibility to bypass the
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dual or double criminality principle in line with UNCAC, which is not in keeping with
the bilateral treaties and municipal law of Thailand, and for the prosecution of the
person, whose extraction is sought, where the extradition is declined, because such
a person is national of the requested country.
Next in line is that Article 44, paragraphs 4, 5 and 6 of UNCAC requires
that all offences to which this article applies shall be deemed to be included as
extraditable offences in extradition treaties existing between State Parties, and that
State Parties undertake to include such offences as extraditable offences in all
future extradition treaties to be concluded between them. Such provisions pose
some problems for Thailand since they are tantamount to amending its preexisting
bilateral treaties given that some of them enumerate the extraditable offences either
in the treaties themselves or in the list in annex thereto, which do not include
bribery of foreign public officials, when in principle the amendment of treaties have
to be done in the form and process for an amendment of treaty both under
international law and municipal law of State Parties. Such an obligation can,
however, be implemented only in the cases where both of the State Parties to such
preexisting bilateral treaties are also Parties of the Convention. Besides, an
amendment of the preexisting bilateral treaties must be done in the same manner as
the one for their conclusion, i.e. if the conclusion of such treaties required
enactment of the implementing legislation and an approval of the Parliament, their
amendment will likewise require and implementing legislation and prior approval of
the Parliament.
In regard of the asset recovery, the main points are as follows:
The asset recovery calls for decision-making both in policy and legal
standpoints whether to opt for the confiscation and recovery of assets by a civil or
criminal approach in light of the fact that each of such approaches has its
advantages and disadvantages depending on whether the country from which the
assets are to be recovered is of the Civil Law or Common Law regime. For
instance, Civil Law allowing for a confiscation and recovery based on the balance of
probabilities, has the clear advantages, since the evidentiary threshold is lower with
civil action than with the criminal action, etc.
There are 2 options for the modes of asset recovery under this Convention,
the recovery of assets exclusively via the national law of that country which is the
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Direct recovery and the asset recovery through international cooperation which
may pose some problems for Thailand in the implementation of its relevant
obligations due to the lack of enabling legislation. For instance, under Thai law
State, be it Thailand or foreign State, and Government be it the Thai or foreign
Government, do not have the juridical personality, consequently have no locus standi
to file law suit in Civil Court to establish its ownership or proprietorship of the
proceeds of an offence under the Convention as well as problems relating to the
requirement that under Thai law a confiscation of property can be done only by
order or decision of the Thai Court, and once confiscated such property will become
property of the country, whose transfer to a foreign country would require an
enabling or implementing legislation. Any confiscation by the order or decision of
foreign court will require a recognition of foreign courts judgment agreement, that
so far Thailand has never concluded with any country, and an implementing
legislation.
Besides, there is still another complication that under Thai law there is only a
Property based confiscation and not a value based confiscation as stipulated in
this Convention.
3. The Preparedness of Thailand to be a State Party to this Convention
3.1 Prevention of Corruption
The researchers viewed that it is essentially urgent to set preventive
measures to its real existence as per the proposal of each issue being
aforementioned. The measures to only combat corruption will not successfully solve
the problems of corruption. The fact that the lack of powerful and pertinent
measures to prevent corruption is one of the major causes for failure to manage
the problems of corruption in the Thai society. With regard to the preventive
measures, the researchers would like to propose the following:
(1) Policy and anti-corruption agencies
1) To impose as important burden for the Anti-Corruption Committee in
each province to work closely with the community for the prevention of
corruption as per the Constitution B.E. 2550 prescribed in the last
paragraph of article 246
2) To impose the establishment of the Central Committee between the Office
of the National Counter Corruption Commission (NCCC) or the Office of
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Anti-Corruption in Public Sector and other Independent Agencies
connected with Constitution law to promote efficiency to prevent the
corruption.
(2) Ethics or Codes of Conduct of public officials and transparency
1) To change the appointment procedures for the Committee of the Office
of Anti-Corruption in Public Sector to guarantee and maximize the principle
of independence. The standards of the selection process for the Committee
to the Office of Anti-Corruption in Public Sector must not be lower than
those for the Committee to the Office of the National Counter Corruption
Commission (NCCC) though it is an inspection of officials ranked 7 and
under. Because the principle of independence and impartiality has nothing to
do with the levels or ranks of officials, i.e. in the case of a judge, whether
how big or small a case, the principle of independence and impartiality
shall perpetually be upheld. Therefore to maintain organizational standards,
the selection processes or procedures of the officials should observe the
same standards.
2) With respect to the fact that the position of the Director General of
the Department of Special Investigation (DSI), the secretariat of the Anti-
Money Laundering Office (AMLO) requires, to some extent, to be
independent, the appointment of person to the aforementioned position
should therefore be approved by the Senate to avoid making these
government agencies an instrument for politics.
3) To impose restrictions to the civil servants or the high raking public
officials, after their resignation or retirement, not to be a counselor or to
get employment, in any organizations in private sector, that directly relates
to the functions held by that official during their tenure.
(3) Measures relating to the judiciary and prosecution services
1) To complete the rights and liberty stipulated by the Constitution,
especially that regarding the transparency and to make the participation of
people in decision-making process to practical effect in the event of a
dispute happens in court. The judiciary shall need to proceed the case
based on the fundamental provisions stipulated in the Constitution. The
judiciary shall not deny to make judgment on any case claiming that there
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is no law provided in that matter. Should the judiciary proceeds the case
accordingly, it will not good for the rights and liberty protection system by
the Constitution but which are contrary to or inconsistent with article 27
and 28 paragraph 3, of the Constitution.
2) To arrange the training for officials in the judiciary and prosecution
services to make them understand and be able to access the true nature
of things and gain real happiness from doing their work with integrity and
independence as per their duties, and be happy to lead a simple way of life.
3) To amend laws relating to the structure of Office of Judiciary
Commission and that of prosecutors Office as the number of judiciaries and
that of the low-rank counsels in such commission is not yet proportionate.
4) For the prosecutors, it is advised to amend the Constitutional B.E.
2550 not to allow the prosecutors to be a member of Board of Director in
any state enterprise with no exception to avoid the conflicts of interest.
5) To establish an independent commission called Special Prosecutors
Commission for persons holding political positions for prosecuting by itself
in corruption cases committed by these persons so that law enforcement in
the prosecution becomes more effective, independent and transparent. A
member of this Commission may be appointed especially from the experts in
corruption cases and with the support of the experts in legal and related
fields. (see details on recommendations in article 30)
6) To amend the codes of conduct relation to the prosecutors to be
stricter more comprehensive to avoid the conflicts of interest as the
prosecutors have more risks in this matter, because of being a member in
state enterprises or being an advisor or counsel to the sub-committee of
any state enterprise.
(4) Private sector and Civil Society
1) To prov ide laws and measures to protect the person giv ing
information about corruption or any unlawful acts.
2) To establish a fund to give financial support to the civil society
working to curb corruption and to give cooperation to all other anti-
corruption organizations detecting corruption commission in the Peoples
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sector. This fund should be established as per the Whistleblower Protection
Law aiming to support the works of the civil society to fight against
corruption of which one of financial resources of the this fund collected
from the proceeds of crime, the confiscated asset or property in corruption
cases as well as urging to propose rules and regulations relating to
whistleblowers reward given by the Office of the National Counter
Corruption Commission (NCCC).
3) To establish The Joint Committee of the Public Sector and the Civil
Society Sector for the Prevention of Corruption in order to create a
profound cooperation between the public sector and the civil society sector
for the prevention of corruption, to promote mutual cooperation to combat
corruption, and to impose a burden on this Joint Committee to disseminate
information to the public and create a curriculum relating to the corruption
problems or another integrated curriculums to include the corruption
issues in other curriculums or subjects. Publishing such data, which may
include regular reports about corruption risks in the public administration
in regard to management of public service is also very important.
4) To amend the Official Information Act B.E. 2540 especially in respect
of limitation of discretionary power of the public officials refusing the
disclosure of information requested, the reduction of time to exercise ones
rights, including promoting effective law enforcement. Besides, there should
be a reorganization of the Official Information Commission. It should be set
up a separate agency or a bureau under the supervision of the Prime
Ministers Office.
5) To establish a new law for the Committee of Corporate Governance
Commission which have a legal status and can be a major organization to
promote the corporate governance in private sector.
6) To impose on the private sector organizations with no legal control
under the Securities and Exchange Act B.E. 2535. Should one of these
private companies, a contract party with the public agencies e.g. being the
party of the public contract or being a company awarded concession from
the government, these companies will need to provide an internal audit of
which is subject to the conditions applied primarily to large and medium-
sized companies.
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3.2 Criminalization and Law Enforcement
(1) Bribery and embezzlement of property
To amend the Thai Penal Code to comprehensively cover the promise to
give, offering or giving of bribery to foreign public officials or officials of
public organizations, both directly or indirectly.
(2) Trading in influence, abuse of functions and illicit enrichment
1) To amend the Organic Act on Counter Corruption, B.E. 2542 (1999)
concerning illicit enrichment and make it a criminal offence. With regard
to the statute of limitations concerning the accusation of illicit enrichment,
the need to prolong the statute limitation which must be done while the
accused person is still a public official or has been, not more than 2
years, out of office (see the last paragraph of section 75).
2) The members of Parliament and the legal authorities should enhance their
knowledge about acts of corruption to clearly understand they are criminal
offences or serious crimes causing damages to the State and the legal
philosophy or universalerechtsgut that do not require the person being
offended to primarily file a petition.
(3) Statute of limitations, Prosecution and freezing of proceeds of crime or
property
1) To amend the Constitution B.E. 2550 by clearly imposing the prosecutors
not to be a member in the committee of any state enterprise to avoid the
matter of the conflicts of interest as having corruptly occurred in the CTX
procurement.
2) For the effective law enforcement in the prosecution level relating any acts
of corruption, an independent Special Prosecutor Commission is needed to
be established for the prosecution in the criminal cases committed by
persons holding political positions. This Commission called the Special
Prosecutors Commission for persons holding political positions shall have
the following qualifications:
2.1 The special prosecutor will be that of the group or the committee for
the independence, transparency and the balance of power to bring the
cases to prosecution which is better than up to only the conclusion of
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the Attorney General which sometimes cannot fulfill the principle of
independence, transparency and effectiveness to bring the cases due to
the conflicts of interest from being a member in the committee in the
state enterprises i.e. the corruption in the two-and-three digit lottery
of which the Attorney General concluded that the case was incomplete
and could not get a mutual resolution from The Asset Examination
Committee-AEC , The Committee for Inspection of Acts Being
Detrimental to the State, and the representatives from the Office of the
Attorney General. AEC then file this case on their own hiring a lawyer
from the Lawyers Council of Thailand to bring this case to the criminal
division for holders of political positions in the Supreme Court of which
the judiciary accepted the case as there was the ground for such
offence.
2.2 The members of this Commission will be from the selection of the
Select Committee and requires to be equally independent as other
independent agencies, such as the Office of the National Counter
Corruption Commission (NCCC). They requires an approval from the
Senate and is regarded a quasi-independent agency according to the
Constitution.
2.3 The Special Prosecutors Commission are of special qualifications-that
is they are experts in corruption cases, or being a person specialized
in anti- corruption laws and related matters.
2.4 The Special Prosecutors Commission will observe one term of office
and the term of office for each special prosecutor will terminate
differently so as to enable a continual exchange of experience in
performing their functions.
The Special Prosecutors Commission will not only enable an effective
prosecution process but also help create new knowledge in this
special, independent agency and promote more recruitment of officials
cognizant of the problems of corruption. The process of the commission
of corruption has expanded to the extent that it becomes more
sophisticated and complicated than before e.g. the case of strategic
corruption, the votes buying in an election, the interference to many
independent agencies to the point that they are entirely controlled. And
a seizure of State power through diverse state mechanisms is called
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State Capture is deemed another method of corruption. Moreover
there is also an abuse of power through highest votes in the
Parliament which is regarded as a parliamentary dictatorship and
shall try to force an amendment in many laws to facilitate their groups
or colleagues to access undue personal interest or benefit. To cope
with such abuse of power, the law enforcement authorities and related
officials need to get new knowledge and efficient personnel or human
resources to tracing the complicated information relating to corruption.
3) For trial and adjudication of persons holding political positions in corruption
cases in the Supreme Court of Justices Criminal Division Persons Holding
Political Positions on the basis of the inquisitorial system are very effective
which should be applied in other corruption cases committed by public
officials by the reason that the criminal proceedings in the latter cases has
different system, accusatorial system, so that any corruption case should
be based on the inquisitorial system.
3.3 Asset Recovery
To be able to recover the property or proceeds of crime is a measure to
effectively destroy the core or the purpose of corruption and is the means to cut a
chance of the offender to use the property, proceeds of crime or other benefit
obtained from committing acts of corruption to strike back to the State or the anti-
corruption authorities of which Thailand does not profoundly have any measure. Two
kinds of confiscations of the proceeds of crime in accordance with this Convention
are : 1) the value-based confiscation and 2) the property-based confiscation.
Thailand now observes the property-based confiscation that poses a lot of
restrictions. UNCAC then imposes the State Parties to establish measures for the
value-based confiscation, that is at which value the offender gets from the criminal
assets or property, it is therefore authorized to, no matter of which assets or
property of the offender, confiscate them equally to its value. This principle thus
requires the prosecutor to only prove that the offender has unlawfully taken this
property at which value but needs not to prove that the property or assets asked
to be seized or confiscated has in any way been involved in the crime committed.
This is a new concept which Thailand needs to amend its domestic laws to suit the
obligation of the Convention in this regard.
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The researchers would like to propose the following recommendations:
3.3.1 The provisions in Chapter 5 concerning the matter of Asset recovery
is yet the measure we need to further apply to suit the culture and the existing
laws of Thailand e.g. in case of this UNCAC, the fact that the State Parties are able
to start the prosecution to trace and recover their property from the Thai court
cannot be done here as per our judiciary system. Therefore other State Parties can
instead recover their property in Thailand through the Mutual Assistance in Criminal
Matters Act B.E. 2535 (1992) to achieve the obligations under this Convention.
3.3.2 Thailand should establish a special agency, independent and free from
any interference of the politics, to particularly be responsible to recover assets or
property from the offender due to the fact that Thailand does not yet have an
independent agency to directly recover criminal assets or property. It is also
beyond capability of other existing anti-corruption entities due to the fact that there
is quite a number of corruption in both regional and national levels as well as
those transnational corruption that are far more complicated than before.
The researchers view that the Office of the National Counter Corruption
Commission (NCCC) should set up a new agency to concurrently proceed on asset
recovery matter. And the Anti-Money Laundering Office (AMLO), versatile in tracing
and recovering the assets derived from the predicate offences and from the money
laundering, should speed up their functions to actively recover assets or property
apart from investigating over unusual transactions. Because the acts of corruption
in any transactions made are obvious and need to be recovered to return to that
State Party or the damaging party and need to be promptly tended to in all cases.
3.3.3 The researchers concluded that law concerning Asset recovery at
the value-based confiscation drafted by the Office of the Council of State of Thailand
to amend the Thai Penal Code, still keeps the principle to firstly confiscate the
assets or property. But if such assets cannot be confiscated, the value-based
confiscation is then permitted. Therefore, Thai laws are not completely amended to
suit UNCAC obligations as it principally observes the property-based confiscation
and observes that of the value-based as a supplement. Therefore a special law
relating to the matter of the value-based confiscation should be enacted and be
applied from the UK laws and regulations.
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3.3.4 There should be a central agency for the coordination and exchange
of information with other anti-corruption authorities by making it an information
network linking to the financial database system and systematic property
management under supervision of independent agencies without interference from
the administration, the politics or any interest groups.
3.3.5 It is recommended to establish a special court for criminal cases
relating asset recovery for the proceedings of confiscation of assets cases
separately from the general criminal court. And the draft of law related to criminal
assets or proceeds of crime should have particular legal procedures for asset
recovery.
3.3.6 It is required to develop personnel responsible for asset recovery
matter of both in Thailand and overseas so that they have sound knowledge of laws
and different practices of other countries. This is because the public officials to Law
of Criminal Procedure and other related public agencies of Thailand are not yet
prepared for this matter e.g. officials responsible for assets tracing and recovering,
officials to particularly file cases to the court for a quick, proper, and impartial
consideration are required.
4.Recommendationstorelatedorganizationsorentities
4.1 For Business Sector
The central entities which represent the business sector are, for example,
The Thai Chamber of Commerce, The Federation of Thai Industries , The
Thai Bankers Association, The Institute of Internal Auditors of Thailand, The
Association of Securities Companies, etc., should promote the business
sector to observe corporate governance which is not subject to only
development for effective organizational work , but should also give
importance to bona fide or good faith in its commerce, the uphold of
morality and professional ethics by not facilitating benefit to the politicians
to get something in return, the promotion for fair competition. The members
of these central bodies should be representatives from the business sector,
the public agencies, the scholars and the civil society sector.
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4.2 For Civil Society
4.2.1 The public sector should support the establishment of Funds to
Fight Corruption as having mentioned in the part of the Preventive
Measures. The Funds should aim to support the performance of the
civil society sector to combat corruption, protect the person disclosing
corruption information, and promote the cooperation with public
agencies to implement the obligations under UNCAC as the role of the
civil society sector and that of NGOs (Non-Governmental Organizations)
will be key component to success for the combat of corruption
problems in many countries.
4.2.2 The public sector then needs to concretely promote the performance
of the civil society sector because the Civil Society Network Against
Corruption requires financial support from either donation or personal
funds to carry out their duties as they are not sponsored by the
public sector. Therefore the public sector should allow Thailand
Peoples Network Against Corruption to participate in detecting
corruption with government authorities e.g. to develop Thailand
Peoples Network Against Corruption, to exchange information about
problems of corruption, to give assistance to develop capability of the
personnel, and to organize activ ities boosting knowledge about
corruption to the public.
4.3 For the Press or Media
4.3.1 To promote the role of the Press to examine or being a watchdog for
the use of State authority with regard to disseminate information about
corruption to the general public.
4.3.2 To focus on investigating reporting in order to bring those involved in
corruption commission to justice before the law especially those of the
administrators, politicians, high raking officials, and businesses.
4.3.3 To promote the Press working skills for investigating reporting and
to continually adhere to it as well as getting the training relating to
relevant law.
4.3.4 The Thai Journalists Association (TJA) should liaise with the Press to
set policies regarding the publicity of news relating to corruption
investigation.
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4.3.5 To promote the Press to be independent and free from political
interference or that of the business sector.
4.4 To instill Peoples Awareness and Conscience about Corruption