RESOURCE MATERIAL SERIES No.76

PROPOSALS TO THAILAND’S POLICY-MAKERS:TOWARDS MORE EFFECTIVE CORRUPTION CONTROL
Supakit Yampracha*♦

I. INTRODUCTION
Thai people are now increasingly conscious of the negative effects of corruption which have weakened
Thai society for so long. According to surveys by Transparency International from 1995 to 2006, Thailand
has long been considered one of the most corrupt nations.1 Moreover, the 2000 national survey found that
Thailand’s household heads rank corruption in the public sector as the third most serious national problem,
following the poor economy and cost-of-living and closely followed by drugs.2 This information obviously
determines the severity of the problem and the urgent need for some corrective measures.
Contemporary Thailand has fought corruption for more than three decades. During those times, many
strategies, either preventive or suppressive, were tried but failed. Do Thai people have to realize that
corruption is always a parasite on society and learn to live with this heinous thing peacefully? As one ofThailand’s criminal justice practitioners, I have to answer “no” to the former question. Corruption is a manmade problem; therefore, it must be solved by a man-made solution.3
Experiences from countries which have succeeded in eradicating corruption show that successful anticorruption strategy should be enforcement-led, which relies more or less on the effectiveness of thecriminal justice system. After taking a short break from my workload as a trial judge and spending timereviewing papers and reports from the previous courses on corruption control in criminal justice which
addressed effective corruption control in other countries, such as Hong Kong, Singapore and the USA, andstudying the text and legislative guide for the implementation of the United Nations Convention against
Corruption (UNCAC), I have discovered that the substantive and procedural criminal law of Thailand have a
lot of ground to cover in order to tackle corruption effectively.
The objective of this paper is to ask Thailand’s policy-makers to re-examine the legal system in some
aspects of substantive and procedural criminal law. I am confident that after re-examining these aspects
thoroughly, Thailand’s criminal law system will be transformed into enforcement–friendly laws that give thepractitioner the necessary teeth and cutting edge in corruption control.
The following questions in sections II to VIII represent seven features of law that need to be reexamined, which are:
A. Investigating Authority
B. Competent Court
C. Suitable Amount of Penalty* Judge, Nakhon Panom Provincial Court, Thailand.

♦ I am grateful to my friend and colleague, Judge Naruemon Sattayaprasert, for her insightful comments on the earlier drafts.

My special thanks go to my wife, Ratchanee, for being a perfect wife and mom so I could steal family time to write, for typing
the first draft of the paper and for enabling me to concentrate all my energies upon writing.
1 http://www.transparency-thailand.org
2 Pasuk Phongpaichit et. al ., Corruption in the Public Sector in Thailand: Perceptions and Experience of Households,
Chulalongkorn University, Bangkok, August 2000, p.7.
3 Transparency International Thailand Newsletter, May 2000, p.1.

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D.
E.
F.
G.

Mitigation for Guilty Plea
Statute of Limitations
Right to Remain Silent
Burden of Proof and Standard of Proof.

II. SHOULD THE NATIONAL COUNTER CORRUPTION COMMISSION (NCCC)HAVE THE POWER TO INVESTIGATE ALL CORRUPTION CASES?
From a political standpoint, the establishment of a specialized agency sends a signal that the government
takes anti-corruption efforts seriously. However, dedicated anti-corruption institutions are more likely to beestablished where corruption is, or is perceived to be, so widespread that existing institutions cannot be
adapted to develop and implement the necessary reforms.
Prior to 1975, Thailand’s anti-corruption activities fell under police jurisdiction. Although the law
provided for heavy punishment if officials were convicted (see table in part IV of this paper), loopholes madedetecting and prosecuting corruption difficult, and regulations hampered police investigations. To strengthen
the effort to combat corruption, the Counter Corruption Commission (CCC) was established in 1975 to be ananti-corruption agency of the government under the Office of the Prime Minister. Its activities were divided
into three areas: suppression (complaint investigation), prevention and public relations, but it also had
limited effectiveness.
Established by the 1997 Constitution (the so-called “People’s Constitution”) and the Organic Act on
Counter Corruption, B.E. 2542 (1993) as the constitutional body which is separate from the executive andreports directly to the National Assembly, the National Counter Corruption Commission (NCCC) has been
charged with functions in three areas:
1.
2.
3.

The declaration and inspection of assets and liability.
Corruption prevention.
Corruption suppression.

In the corruption suppression area specifically, the NCCC has a lot of duties and responsibilities toinquire into corruption cases and any other offences which are as follows:
a)
b)
c)
d)
e)
f)

removal from officecriminal proceedings for persons holding political positions and other government officials
disciplinary proceedings
inquiry into unusual wealthinquiry according to the Offence Relating to the Bid to the Government Agencies Act 1999
monitor the distribution of partnership and shares of Ministers.4

The NCCC has very broad duties in inquiring into all kinds of corruption offences committed by every
level of government official. As a result, the NCCC has a severe caseload problem. In 2003, about 2,000
corruption cases were submitted but only 1,200 cases were inquired into fully and disposed; certainly somewere cases submitted in previous years, leaving about 6,000 cases pending for the next year.5 This problem
derives from the NCCC organizing law: the Organic Act on Counter Corruption (OACC) especially Section
45 which states that in conducting factual inquiries, the NCCC may appoint an inquiry sub–committee whichshall consist of one member of the commission and competent officials. With nine commissioners and athousand cases pending for inquiry, it is an impossible mission.
Thai academics suggested the amendment of Section 45 by removing the requirement that an inquiry
sub-committee shall consist of one member of the commission.6 This will directly reduce the caseload of

4 http://www.nccc.thaigov.net/nccc/en/duty.php
5 NCCC Annual Report, 2003.
6 Thaweekiat Meenakanit et al., Measures to Prevent and Suppress Corruption, in Resource Material of the Second National

Symposium of Justice Administration, Ministry of Justice of Thailand, September 2004, pp.270, 273.

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each commissioner and hopefully speed up the inquiry process. Alternatively, some researchers
recommended the amendment of Section 19 (3) of the OACC, which mandated NCCC powers and duties toinquire into whether a state official (not person holding a political position) has become unusually wealthy or
has committed an offence of corruption, by adding a clause stating that the NCCC does not have toinvestigate the case from the outset but can mainly rely on the investigation file prepared by the agency of
the alleged official.7
While the above two recommendations were based on an assumption that the NCCC should have themonopoly duties in investigating corruption cases, the third one called for a radical change. Some
researchers claimed that due to problems of ineffectiveness and the caseload of the NCCC, and the fact thatsince the establishment of NCCC the government no longer has any effective organs to serve its policy tofight against corruption, the executive branch of the government should have its own investigative authority
while the NCCC should exercise its power only in the case of corruption conducted by politicians and highranking government officers.8
To make the best choice, firstly, the policy-makers must remind themselves that the NCCC has been
established as an independent organization, free from a chain of command of the executive branch, becauseof the failure of the past anti-corruption body, which was under the mandate of the Prime Minister’s Office.
Secondly, if centralized corruption control policy is an ultimate goal, setting up a parallel investigating
authority will cause more harm than good. Lastly, it is easier to appeal to the legislators for the amendment
of only one or two sections of the current law than enacting a new law and amending the current law
simultaneously.9

III. SHOULD THAILAND ESTABLISH SPECIALIZED COURTSTO TRY CORRUPTION OFFENCES?
The establishment of specialized courts is to ensure that specific or technical problems will be solved by
an appropriate judge, therefore, a judge of the specialized courts is appointed from judges who possess
competent knowledge of the specific matters. There are four specialized courts in Thailand: the Labour
Court, the Tax Court, the Intellectual Property and International Trade Court, and the Bankruptcy Court. Asof today, there is no permanent specialized court for all corruption cases.10
Unlike Thailand, Indonesia, Pakistan and Sri Lanka have specific courts to deal with corruption cases.
The advantage in this is that the presiding judge will devote more time to corruption cases and throughconsistent practice, gain the experience necessary to speed up trials, as well as conduct efficient
proceedings.11
Even though Thailand has no corruption court of general jurisdiction, the Supreme Court’s Criminal
Division for Persons Holding Political Positions (hereinafter “special division”) has been established since 15
September 1999 by provision of the 1997 Constitution and the Organic Act on Criminal Procedure for
Persons Holding Political Position B.E. 2542 (1999) for the purpose of expeditious and fair trial of corruption
offences committed by politicians.
The special division of the Supreme Court has the power and duty to try and adjudicate a case against

7 Committee for the Constitutional Amendment, Guidelines for the Amendment of the Constitution Concerning the National

Counter Corruption Commission, November 2006, pp.56-59.
8 Pongpat Riengkraue, The Establishment of the Executive Anti-Corruption Body, research proposal submitted to the Office ofJustice Affairs, Ministry of Justice, 2005.
9 According to Section 250 of the 2007 Constitution, which entered into force 23 August 2007, the NCCC has duties toinvestigate only corruption offences conducted by politicians and high ranking government officials. However, a newinvestigative authority for lower ranking officials has not yet been established.
10 The Supreme Court of Thailand, 2004, p.12.
11 Report of the Course: Current Problems in Responding to the Corrupt Activities of Public Officials at the Investigation and
Trial Stages and Solutions for Them, in Resource Material Series No.56, UNAFEI, pp.549-550, 560.

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persons holding a political position having been accused of becoming unusually wealthy, committing an
offence of malfeasance in office according to the Penal Code, committing an offence of dishonesty in office, or
corruption according to other laws, including a principal, an instigator or a supporter of such offence.
The quorum of the special division of the Supreme Court consists of nine Justices of the Supreme Court
who hold a position of not lower than Justice of the Supreme Court, and are elected by a plenary session of
the Supreme Court Justices on a case by case basis. A judgment will be made by a majority of votes,
provided that each Justice constituting the quorum will prepare a written opinion and make oral statements
to the meeting before making a decision. Orders and decisions of the Supreme Court’s Criminal Division for
Holders of Political Positions will be disclosed and final.12 However, if there is fresh evidence material to thecase that would likely lead to the acquittal of the alleged offenders, they can appeal to the plenary session of
the Supreme Court.13
While the procedures of the general criminal court are spelled out in the Criminal Procedure Code, theprocedures for criminal proceedings in the special division are stated in the 1999 Organic Act and Rules on
Criminal Procedure for Persons Holding Political Position B.E. 2543 (2000), which are different fromordinary criminal proceedings in some aspects. For example, for the proceeding in the special division, data
recorded in or processed by computer is admissible as evidence14 and the court may permit the hearing of awitness outside the court conducted by means of video-conference,15 although these procedures have notyet been endorsed by the Criminal Procedure Code. The most important features of criminal proceedings in
the special division of the Supreme Court is that the trial is founded upon an inquisitorial system, rather thanan accusatorial one, by which the court must mainly rely on the inquiry file of the NCCC; however, thequorum of justices may conduct an investigation in order to obtain additional facts or evidence as it thinks
proper.16
The Supreme Court’s special division is not a specialized court in principle, even though it has a special
criminal proceeding. Justices of the division are chosen from all Justices of the Supreme Court on a case bycase basis; therefore, experience in trying and adjudicating corruption cases is not required. Undoubtedly, allJustices of the Supreme Court have at least thirty years’ experience on the bench; however, not all Justices
have experience in corruption cases. Moreover, while conducting criminal trials in the division, the Justices
still have responsibility to try other kinds of cases.
From 1999 to 2006, only four cases were submitted and disposed by the special division. This figure
raises an issue of efficiency for the establishment of the division. It is about time for the policy-makers to reexamine the structure of this division, in order to enhance both effectiveness and efficiency. The division
should be restructured to be a genuine specialized court for corruption cases which must consist of Justices
appointed from among the Justices of the Supreme Court who possesses competent knowledge of corruption
control measures in order to create expertise and consistent practice.
Statistics indicate that there were about 400 to 600 corruption cases submitted to the courts of justiceeach year,17 therefore it will be impossible for the special division to try all of those cases even if it hascompetent judges. The solution to this problem may be the establishment of a permanent special division in
the courts of appeal consisting of competent appellate judges and being charged with the duty to try andadjudicate corruption offences committed by state officials who do not hold a political position. The decisionsof this new division can be appealed to the special division of the Supreme Court. As a result, the current
special division will perform its duties both as the court of first instance for corruption offences committed
by politicians and the court of appellate jurisdiction for offences of corruption conducted by other state
officials.

12 Supra note 10, pp.14-15.
13 Constitution of the Kingdom of Thailand 2007, Section 278 paragraph 3.
14 Rules on Criminal Procedure for Persons Holding Political Positions B.E. 2543 (2000), Rule 13.
15 Supra note, Rule 20.
16 Supra note 10, pp.18-19.
17 Annual Judicial Statistics, Thailand, from 1993 to 2005.

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IV. ARE THE PENALTIES FOR CORRUPTION OFFENCES
TOO LENIENT TO DETER CORRUPTORS?
Traditionally, it has been believed that punishment as a social institution (or penalty) has changed inrelationship to the prevailing beliefs about humankind in general and about criminals in particular. For
example, the eighteenth-century classical schools of criminology, founded on the utilitarian beliefs of free
will and the capacity for rational thought, viewed crime as the outcome of citizens concluding that thebenefits of committing a crime outweigh the risks of significant punishment. The consequence of suchcriminological thinking called for the imposing of sanctions of sufficient severity to deter real and potential
offenders.18
Rational Choice Theories of Crime, which have been the foundation of crime control policy in many
countries for three decades, shared a view of humans as the “rational man”, like the classical school ofcriminology. According to this prevailing theory, the fear of future suffering is enough to deter the rational,
free-acting citizen from engaging in criminality.19
Deterrence, therefore, is economic analysis par excellence since it focuses on the behaviour of individuals
as rational actors. It treats the offender as a rational economic actor influenced by the pricing system ofpunishments. Punishment will act to deter the person sentenced (individual or specific deterrence), so thatthe person will desist from offending through fear of repetition of the penalty in future, and in addition, thepunishment will deter other like-minded people (general deterrence).20
Aiming at controlling corruption through deterrence, Section 30 of the UNCAC requires that States
Parties make the commission of an offence established in accordance with the convention liable to sanctions
that take into account the gravity of that offence.21 Moreover, paragraph 5 of the same section also requires
States Parties to take into account the gravity of the offences concerned when considering the eventuality ofearly release or parole of persons convicted of offences established in accordance with the Convention.
Persons who commit corruption offences in the Thai public sector are liable for the punishments outlinedin the following table.22
Law, Section

Behaviour

Object/Funds

Punishment (prison; fine)PC23 143

Trading in Influence

Property or
Other Benefit

Up to 5 Years; Up to 10,000 baht24

PC 144Give, Offer, Agree to give

Property or
Other Benefit

Up to 5 Years; Up to 10,000 baht

PC 147

Misappropriates

Anything

5 Years to 20 Years or life; 2,000 to
40,000 baht

PC 148Misuses power

Property or any
other benefit

5 Years to 20 Years or life or death(lethal injection); 2,000 to 40,000 baht

PC 149Demand, Accepts

Bribe

5 Years to 20 Years or life or death;
2,000 to 40,000 baht

PC 150Demand, Accepts(before being appointed)

Bribe

5 Years to 20 Years or life; 2,000 to
40,000 baht

18 Gregg Barak, Integrating Criminologies, Allyn & Bacon: MA, 1998, p.74.
19 Ibid, pp.189-192.
20 Martin Wasik, Emmins on Sentencings, Blackstone Press: London, 2001, p.46.
21 Thailand signed the UNCAC on 9 December 2003 but has not yet ratified it.
22 Revised and updated from table printed in Report of the Course: Current Situation of and Recent Trends in the Corrupt

Activities of Public Officials, and Criminal Legislation against Corruption, Resource Material Series No.56, UNAFEI, p.545.
23 Penal Code.
24 As of 1 October 2007, the exchange rate is about thirty-four baht for one US dollar.

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PC152, 153

Embezzles

Any kind of
benefit

1 Year to 10 Years; 2,000 to 40,000 baht

PC 154 to 156

Misuses of power incollecting taxes and feesor auditing

5 Years to 20 Years or life; 2,000 to
40,000 baht

PC 157

Misuses power

1 Year to 10 Years ; 2,000 to 40,000 baht

PC 167Give, Offer, Agree to give(to judicial officer)

Up to 7 Years; Up to 14,000 baht

PC 200Misuses power(in judicial office)1) 6 Months to 7 Years; 1,000 to
14,000 baht2) life or 1 Year to 20 Years; 2,000 to
40,000 baht

PC 201

Demand, Accepts(in judicial office)Bribe

5 Years to death; 2,000 to 40,000 baht

PC 202

Demand, Accepts(in judicial office)(before being appointed)

Bribe

5 Years to death; 2,000 to 40,000 baht

SBSA25 10

Misuses power to approveor consider a bid

1 Year to 10 Years; 20,000 to
200,000 baht

SBSA 11

Misuses power to prevent
fair bid competition

5 Years to 20 Years or life; 100,000
to 400,000 baht

SBSA 12Same behaviour as sec. 10,
11 committed by a political
position holder

7 Years to 20 Years or life; 140,000 to
400,000 baht

NCCC Law 100

Conflict of Interest

Up to 3 Years; Up to 60,000 baht

Comparatively, in Singapore, a country which has been considered to have a sufficiently deterrent
punishment, a single charge attracts a maximum fine of $100,000 or an imprisonment term not exceeding
five years, or both. For offences involving government contracts or those involving bribery of a Member ofParliament, the maximum jail term is extended to seven years, although the maximum fine remains at$100,000. A penalty equal to the amount of bribe shall also be imposed.26
Obviously, the sentence of imprisonment prescribed by Thailand’s Penal Code takes into account theseriousness of the offences of corruption and should be considered a sufficiently deterrent punishment.
However, in practice, the court seldom imposes a fine on corruption offenders due to the provision ofSection 20 of the Penal Code which states that for an offence liable for the punishment of both imprisonment
and fine, if it thinks fit, the courts can impose only imprisonment. This can reduce the deterrent effect of theexisting provisions. Moreover, even in the case that the courts impose a fine for a corruption offence in the
penal code, the amount of the fine, revised in 1959, is too low. The government should consider amendinglaws concerning fines for corruption offences in order to maintain the deterrent effect of current provisions.
Given that the court is unlikely to want to pass the maximum sentence, the next question is: what levelof sentence would properly reflect the seriousness of the offence? It is of great importance for the court to25 Act on Offences Relating to the Submission of Bids to State Agencies B.E.2542 (1999).
26 Chua Cher Yak, Corruption Control: More than just structures, systems and process alone, Visiting Expert’s Paper,

Resource Material Series No.65, UNAFEI, p.234.

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gauge the seriousness of one offence in relation to another, and to distinguish between each offence. This isa demanding task for the court, but it is central to the sentencing decision.27
Due to the fact that judges have different backgrounds and experiences, they can pass different sentences
for offences of a similar nature and offenders of similar characteristics. In order to create a uniform
sentencing practice, Thailand should formulate and promulgate sentencing guidelines.28
While the court is responsible for fixing the length of the custodial sentence and for announcing that termin open court, the actual period to be served by the offender is affected by the operation of early releasearrangements and, in some cases, by subsequent decisions made by a parole board.29 As a result, thedeterrent effect of a custodial sentence carefully estimated by the court will be reduced by the discretionary
power of the executive branch. This problem in Thailand is worsened by severe overcrowding, a situationthat welcomes the administrative power of correctional officers to allow earlier release of prisoners. This,consequently, widens the gap between custodial time served by the offender and sentenced term of
imprisonment pronounced by the court.30
In order to maintain the deterrent effect of the punishment calculated carefully by the courts, Thailand’s
policy makers should promptly promote alternative measures to custodial sentences to solve the problem ofprison overcrowding, and it should consider adopting the British model of early release31 which is subject tothe good behaviour of offenders when in custody. Offenders who receive custodial sentences know at thetime of their sentencing, pending good behaviour, what their actual release date will be. Mixing all factors
together, hopefully, prison time served and time pronounced will be roughly equal.
The final remark is that deterrence is difficult to measure. Is the fine and prison sentence a deterrent tobribery? The answer depends upon the personalities of those involved, the amount of money of the bribe,and the likelihood of detection and conviction. It very likely deters some and does not deter others. So thequestion is whether increased efforts at detection and prosecution, accompanied by increased penalties, will
have a greater deterrent effect than current penalties, and whether the increased costs associated with these
efforts will be justified.32

V. SHOULD A GUILTY PLEA FROM A CORRUPTION OFFENDER LEAD TOA DISCOUNTED PENALTY?
There are matters of mitigation personal to the offender which it is appropriate to take account. The mostimportant and most frequently relied upon matter in mitigation is the offender’s guilty plea. The reason why
the courts grant a substantial discount on sentence for a guilty plea, in the majority of cases, is that
defendants who plead guilty help to shorten trials, reduce court backlogs and save the costs of legal aid.
Moreover, a decision to plead guilty will indicate the offender’s regret for the offence.33
In Thailand, according to Section 78 of the Penal Code, a timely guilty plea may attract a penalty discountof up to one-half and in practice the courts consistently discount one-half of the punishment for a timely
guilty plea for all offenders. Aiming to enhance the deterrent effect of punishment in corruption offences, theThai government approved the Penal Code Amendment Bill, which has amended Section 78 in order todiminish the power of the court in discounting sentence for a guilty plea from up to one-half to only up to
one-fifth in corruption offences.

27 Supra note 20, p.54.
28 There are sentencing guidelines for judges in each of the nine regions around the country. However, these guidelines are
not uniform and mandatory. Moreover, they are not disclosed to the public.
29 Supra note 20, p.150.
30 Research conducted in the past indicated that if the time imposed by the court was life imprisonment, the time served wasabout 12 years.
31 Supra note 20, pp.150-157.
32 Anthony Didrick Castberg, Current Problems in the Fight against Corruption and Some Possible Solutions: US Perspective,
Resource Material Series NO.56, UNAFEI, p.407.
33 Supra note 20, pp.66, 75.

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Obviously, the upcoming amendment of the Penal Code will allow the courts to impose a longer jail termon corruption offenders, but as I discussed before, time served by offenders in Thailand is a lot shorter thantime pronounced by the court. As long as prison overcrowding is an overwhelming problem and laws
concerning early release and parole are not yet revised, diminishing the power of the court to discountsentences can, at its best, increase only minimally the deterrent effect of the punishment. In contrast to thisuncertain minimal advantage, diminishing the court’s power only in relation to corruption offences will
inevitably raise an issue of discrimination.

VI. IS THE CURRENT STATUTE OF LIMITATIONS FOR CORRUPTION OFFENCESLONG ENOUGH TO BRING ALL CORRUPTORS TO JUSTICE?
The length of the period of limitation for corruption offences in Thailand ranges from between one totwenty years depending on the gravity of the offence; the majority of corruption offences carry a statute oflimitations of twenty years calculated from the day an offence is committed. According to the Penal Code andthe Criminal Procedure Code, prosecution and punishment for an act shall be barred when the period oflimitation has elapsed.
In practice, investigation and prosecution of corruption in Thailand often begin after the retirement or
the removal from office of government corruptors. Therefore, questions have been asked in Thailand’s
academic and political arena as to whether the period of limitation set by the current law is long enough tobring corruptors to justice. Some practitioners and politicians have called for the abolishment of the time
limit for the prosecution of corruption offences. Alternatively, the government has drafted the penal code
amendment law to extend the time limit for corruption to thirty years but maintain the same method in
calculating the time.
In my opinion, extending the time period for corruption offences without changing the penalty for those
offences can be considered a betrayal of the generally accepted principle that time limitation for an offence
should depend on the seriousness of the offence. The suitable option for Thailand should be revision of themethod of calculation so that time limit will not begin to run until the commission of the offence becomes
known to the investigative authorities. While maintaining the current length of time, which depends on andreflects the seriousness of each offence, changing the calculation method can truly extend the time
permitted for investigation and prosecution.

Vll. SHOULD SUSPECTS OF CORRUPTION OFFENCES
ENJOY THE RIGHT TO REMAIN SILENT?
Thailand has followed the old British system of allowing suspects to exercise their right to remain silent
when questioned by investigators. However, when the case comes to court, the offender will have had ample
time to concoct a story, which does not allow the prosecution sufficient time to verify its truthfulness. In theend, it defeats the objective of the criminal justice system of enabling full facts to be presented to the courtso as to arrive at a fair decision.
Undoubtedly, the right of silence must be respected by the criminal justice system because it is afundamental human right that no person shall be compelled in any criminal case to be a witness against
himself, however, in establishing a better balanced system, the accused must be warned before invoking theright to remain silent that adverse inferences may be drawn against him or her from his or her failure tomention certain facts.
If Thailand wants to break the secrecy of crimes like corruption, it should follow the new British system
which has been used for more than a decade and has provided that adverse inferences may be drawn against
the accused in certain circumstances from his or her failure to mention certain facts. In adopting this model,
a revised version of the caution should also be promulgated to strike a better balance between the humanrights of suspects and the public interest in the investigation of crimes, which provides for the suspect to be
told as follows:“You do not have to say anything. But it may harm your defence if you do not mention when questioned
something that you later rely on in court. Anything you do say may be given in evidence.”

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VllI. IS IT POSSIBLE TO SHIFT THE BURDEN OF PROOF AND REVISEA STANDARD OF PROOF IN CORRUPTION LITIGATION?
In criminal cases, there is a perception that an individual defendant is pitted against the weight of theState in the form of the prosecution. Since the individual’s liberty and/or life are at stake, the law adopts aprotective and paternalistic approach. The rules on the legal burden and standard of proof are such that theprosecution had the onus of proving guilt beyond reasonable doubt, and the defendant is very rarely put toproof.
Thailand also adopted this standard for general criminal cases, including corruption cases, as indicated in
Section 227 paragraph 2 of the Criminal Procedure Code that where any reasonable doubt exists as towhether or not the accused has committed the offence, the benefit of doubt shall be given to him or her.
However, a criminal trial in the special division of the Supreme Court for politicians is based on an
inquisitorial system by which the court mainly relies on the investigation report of the NCCC and may
conduct an investigation as the quorum think proper, therefore, the division does not confront the burden
and standard of proof problems.
In my opinion, using civil proceeding to address problems of proof in corruption offences also has at least
two disadvantages. Firstly, we may not ask for mutual legal assistance in civil proceedings. Secondly, civil
sanctions may not deter corrupt officials as sufficiently as criminal punishment. Bearing in mind thesedisadvantages and realizing that experiences in some countries show that the offence of illicit enrichment isless difficult to prove than other corruption offences, Thailand should consider criminalizing illicit
enrichment.

IX. CONCLUSION
Effective corruption control requires not only effective laws and seriousness in law enforcement but also
co-operation from and co-ordination among the public sector, the private sector and the people. Therefore,
while contemplating the weaknesses in anti-corruption legislation which this paper suggested, Thailand’s
policy-makers also have to formulate other preventive measures, such as how to reform the management
system and the remuneration payment of the government, how to deprive the corruption opportunities, how
to educate people to know the wickedness of corruption and seek co-operation from them.
Being aware that corruption in Thailand is a never-ending problem, it is, therefore, all the morenecessary that all sectors of Thai society do not relent in their efforts and determination to coalesce andwork towards the common goal. As I mentioned before, corruption is a man-made problem, and it is withhigh hopes and belief that I write that there exists a man-made solution for curing this cancerous growth inThai society.

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APPENDIX I
LIST OF THAILAND’S ANTI-CORRUPTION LEGISLATION
I. LAW ON CORRUPTION OFFENCES
OF THE PUBLIC OFFICIALS AND PROCEEDINGS
1.
2.
3.
4.
5.

Penal Code; passive/active bribery, embezzlement, misappropriation, abuse of power, trading in
influence
Act on Offences Relating to the Submission of Bids to State Agencies B.E.2542 (1999)
Organic Act on Counter Corruption B.E. 2542 (1999); conflict of interest offences, corruption cases
criminal proceeding and unusual wealth inquiry proceeding, assets and liabilities declaration
Organic Act on Criminal Procedure for Persons Holding Political Position B.E. 2542 (1999) ; criminal
proceeding and unusual wealth inquiry proceeding for politicians
Criminal Procedure Code; criminal proceeding for public officials

II. LAW ON CORRUPTION OFFENCES IN THE PRIVATE SECTOR
1.
2.
3.
4.

Penal Code; embezzlement, breach of trust, fraud
Act on Trade Competition B.E. 2542 (1999); anti-monopoly law, liability of managing directors andmanaging partners
Act on Offences Relating to Registered Partnerships, Limited Partnerships, Private Companies,
Associations and Foundations B.E.2499 (1956); fraud, breach of trust by managing directors or
managing partners
Act on Securities and Securities Exchange Market B.E.2535 (1992); fraud, embezzlement, breach oftrust of directors or managing directors of public companies

III. LAW ON CORRUPTION-RELATED OFFENCES
1.
2.
3.

Taxation code; tax evasion
Money Laundering Control Act B.E. 2542 (1999); corruptions offences are predicate offence formoney laundering offences, civil forfeiture proceeding
Witness Protection Act B.E. 2546; witness protection measures, obstruction of justice offences:intimidating or doing any harm to witnesses ( not offences in themselves but being aggravating
factors)

IV. LAW ON INTERNATIONAL CO-OPERATION
1.
2.

Extradition Act B.E. 2472 (1929) and many Bilateral Extradition Acts
Act on Mutual Legal Assistance in Criminal Matters B.E.2535 (1992)

V. OTHER LAWS ON PREVENTIVE MEASURES
1.
2.
3.
4.
5.

The 2007 Constitution; Provisions related to public officials’ code of conduct
Organic Act on Political Parties B.E. 2550 (2007); control mechanism of political parties’ funding,spending and donations
Organic Act on Ombudsmen B.E. 2542 (1999); monitoring state officials’ exercise of power, checkand balance
Act on Management of Partnership Stakes and Shares of Ministers Act B.E.2543 (2000); preventionof conflict of interest
Official Information Act B.E. 2540 (1997); people’s rights to access public information, disclosure of
public information

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RESOURCE MATERIAL SERIES No.76

APPENDIX II: Flow Charts of Criminal Justice Proceedings of Thailand(including corruption cases)
Other Criminal Cases

Corruption Cases (in the public sector)
Offence

Identification

Private Prosecution(Victims and their attorneys)(Police)
Investigation (Police orSpecial Investigation
Department)

Trial and Adjudication(Courts of the first instance)

2nd Appeal(The Supreme Court)

Investigation(NCCC or new agency)

Independent Investigator(Appointed by the special
division)(Politicians)

Prosecution(Public Prosecutors Office)

Trial and Adjudication(The Supreme Court’s Special
Division)(Politicians)*

Appeal to the plenary session of theSupreme Court(If there is fresh evidence material in
the case that would likely lead to theacquittal of the alleged offender)

Execution of Punishment(Department of Corrections,
Courts)* Including any lay person who is a principal, instigator or supporter of that offence.

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Preliminary
Hearing (Courts)

Preliminary
Hearing (Courts)

Prosecution(Public Prosecutors Office)

1st Appeal(Courts of Appeal)

Identification(Police, NCCC)

Trial and Adjudication(Courts of the first instance)(State Officials)*
1st Appeal(Courts of Appeal)
2nd Appeal(The Supreme Court)

THE TENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

APPENDIX III: Flow Charts of Unusual Wealth34 Inquiry Proceeding of Thailand(Non-Criminal Proceeding)35

Identification(NCCC)
By examining an accountshowing assets and liabilities of
persons holding political
positions and state officials

Allegations(Public)

Investigation(NCCC)

Examining evidences and Submitting
motion to initiate the proceeding(Attorney-General)
Inquiry Proceeding (The Supreme Court’s
special division)(Politicians)(Final Decision)Inquiry Proceeding(Courts of the first instance)(State Officials)

1st Appeal (Courts of Appeal)

2nd Appeal (The Supreme Court)
Property devolved on the stateor case dismissed

34 Unusual wealth means having an unusually large quantity of assets, having an unusual increase in assets, having an unusual

decrease of liabilities or having illegitimate acquisition of assets as a consequence of the performance of duties or the exercise
of power in office or in the course of duty.
35 For the unusual wealth inquiry proceeding, the accused have to prove that assets considered disproportionate to theirincome were not obtained through corrupt practices, otherwise proved, those assets will be considered as corruptly acquired
property and will be devolved on the State.

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