( ...)

..

2003 UNCAC (United

Nations Convention against Corruption-UNCAC, 2003)

(.) 19 2550

UNCAC ...

. .

...

1Intro.indd 3 11/17/08 8:37:52 AM

(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

1Intro.indd 9 11/17/08 8:37:53 AM

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

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

1Intro.indd 11 11/17/08 8:37:53 AM

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

1Intro.indd 12 11/17/08 8:37:53 AM

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

1Intro.indd 13 11/17/08 8:37:53 AM

(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

1Intro.indd 14 11/17/08 8:37:54 AM

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

1Intro.indd 15 11/17/08 8:37:54 AM

468

483

1 484

2 , 485

3 .. 2003 491

(United Nations Convention against Corruption-UNCAC, 2003) ()

4 UNCAC 548

5 571

6 581

1Intro.indd 16 11/17/08 8:37:54 AM

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

1Intro.indd 17 11/17/08 8:37:54 AM

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

1Intro.indd 18 11/17/08 8:37:54 AM

. 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.

1Intro.indd 4 11/17/08 8:37:52 AM

..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. ...

.. ....

1Intro.indd 5 11/17/08 8:37:52 AM

(Integrity)

UNCAC

UNCAC

(ASEAN)

UNCAC

( ...)

UNCAC

...

1Intro.indd 6 11/17/08 8:37:52 AM

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.

1Intro.indd 7 11/17/08 8:37:53 AM

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.

1Intro.indd 8 11/17/08 8:37:53 AM

()

.. 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)

1Intro.indd 1 11/17/08 8:37:54 AM

..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)

1Intro.indd 2 11/17/08 8:37:55 AM

()

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)

1Intro.indd 3 11/17/08 8:37:55 AM

..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.

1Intro.indd 4 11/17/08 8:37:55 AM

()

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

1Intro.indd 5 11/17/08 8:37:55 AM

..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

()

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

1Intro.indd 7 11/17/08 8:37:56 AM

..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

()

)

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)

( )

1Intro.indd 9 11/17/08 8:37:56 AM

..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

()

UNCAC

4

1.

(

)

UNCAC

(International Regimes) UNCAC

(norms)

(monitoring

system) (enforcement)

UNCAC

1Intro.indd 11 11/17/08 8:37:56 AM

..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.

1Intro.indd 12 11/17/08 8:37:57 AM

()

(safe haven)

14

dual

double criminality

44 4, 5 6 UNCAC

(asset recovery)

(civil

criminal approach)

Common law Civil law

Civil Law

1Intro.indd 13 11/17/08 8:37:57 AM

..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

()

(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

()

5)

6)

... .. 2535

3.2

(1)

(2) ,

1)

.. 2542

( 75 )

2)

(Universalerechtsgut)

(3) ,

1) .. 2550

CTX

2)

2.1

1Intro.indd 17 11/17/08 8:37:58 AM

..2003

()

. .

2.2

...

2.3

2.4

State Capture

3)

1Intro.indd 18 11/17/08 8:37:58 AM

()

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

1Intro.indd 19 11/17/08 8:37:58 AM

..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

()

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

...

1Intro.indd 22 11/17/08 8:37:59 AM

()

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)

1Intro.indd 23 11/17/08 8:37:59 AM

..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

()

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

()

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.

1Intro.indd 27 11/17/08 8:38:00 AM

..2003

()

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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(0)

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