CONTEMPORARY MEASURES OF INTERNATIONAL COOPERATIONAGAINST CORRUTION IN THAILAND
Pattraporn Pommanuchatip*
Pakorn Kunsara†I.

INTRODUCTION

Corruption is the misconduct occurring when the person holding a position of authority
exploits or abuses the opportunity or one or more positions in office to acquire immoral benefits
unfaithfully. Corruption occurs in various forms such as bribery, embezzlement, extortion,
blackmail and abuse of discretion. Such misconduct not merely causes damage to the individualor the private sector, such as companies, the organization related to the corruption transaction
and those the perpetrators belong to, the shareholders, taxpayers and the beneficial interests,
but also leads to adverse effects for the nation as a whole due to the cost of corruption to theeconomy. People have to bear superfluous expenses without their consent. Certainly,
corruption is an important obstacle to development and living quality.
Moreover, in many cases corruption relates to or supports other crimes. In the public
sector, corruption dilutes the quality of services and the benefits that the officers andgovernment can render to the people, the community and the country. The fact that a numberof perpetrators can escape from penalties results in the lack of remedies and decreases investor
confidence and that of the people in the relevant businesses and organizations including law
enforcement agencies and has grave effects on society.
The prevention and suppression of corruption, therefore, are essential to protect oursocieties and the people from the threatening danger of corruption, to provide them withremedies, to limit the opportunity to repeat the crimes of the perpetrators, to deteriorate thewrongdoing, to give the opportunity for rehabilitation to the perpetrators, to confirm the norms
and morals of the society and to maintain organizational, national and global integrity andsecurity.
Like other crimes, perpetrators endeavour to run away from penalties. Various techniques
including hiding of evidence and witnesses, concealing the proceeds and changing their placeof residence in order to enjoy the unjustifiable enrichment without liabilities. Such techniques
include utilizing the limitations of territorial jurisdiction of the authorities by entering thescheme or the transaction abroad, transferring or keeping the proceeds in other countries,changing their place of residence and laundering of money. There is a limitation on law
enforcement authorities beyond their judicial territory, especially in the other country which is
subject to the sovereignty of the other state that must be respected and recognized. To avoid
the violation of the jurisdiction of the other state and to ensure the legitimacy of procedures, itis necessary for the competent officers to engage in international cooperation to achieve
efficient and successful means of combating corruption.

*

Provincial Chief Public Prosecutor Attached to the Office of the Attorney General, Office of Civil Rights
Protection, Legal Aid and Execution, Srakeaw Province.
†
Public Prosecutor, Department of Economic Crime, Office of the Attorney General.

This essay aims to study the measures of international cooperation applicable forcombating corruption and the legislation in Thailand that is an important tool to deal withinternational cooperation to combat corruption.
II.

INTERNATIONAL COOPERATIONInternational cooperation in criminal matters is requested and rendered between statesand sometimes by international organizations. The assistance that may be acquired throughinternational cooperation, including investigation, prosecution and other stages or proceduresin criminal law such as the exchange of information, locating of people, service of documents,
search, seizure and freezing of property, conducting interrogation, obtaining evidence,
testimony and statements, arrest and extraditing fugitives, etc. International cooperation
possibly can be divided into three categories, namely formal cooperation, informal cooperationand cooperation in technical assistance and training.
First, the formal international cooperation in criminal matters is usually acquired throughmeasures provided by the domestic law in accordance with the binding international treaties
such as treaties on mutual legal assistance in criminal matters and extradition treaties. If it isallowed by the domestic law, when there is no binding treaty, international cooperation can bearranged and obtained through diplomatic channels. The international cooperation by formal
channels includes mutual legal assistance (MLA), extradition, letters rogatory (letter from thecourt requesting the court in another country to carry out judicial acts) and transfer of prisoners.
It should be noted that formal cooperation is usually based on the principle of dual
criminality, reciprocity and the respect of sovereignty and jurisdiction of related states. In
addition, extradition is usually subject to conditions such as being non-military and nonpolitical offences and the requesting state must assure the principle of non-severability. In
many countries, the extradition of nationals is prohibited.
Informal international cooperation is usually acquired by communication throughperson-to-person channels, liaisons, legal attachés and Interpol or the like. This means ofcooperation is dependent upon personal trust of the requesting and requested official. The levelof assistance is limited, and it is difficult to prove the legality and admissibility of the obtained
information and evidence.
International cooperation in technical support and training often has fewer conditions.
Usually, it does not have to be mutual. It is not based on the principle of reciprocity and is notbased on legally binding treaties or domestic law. However, this type of assistance is not justimportant in combating corruption by raising the awareness of officials and the public on
corruption and the prevention and suppression thereof, but also deepens the understanding of
the official of their own laws and regulations and their understating of the law and process ofthe other country. Particularly, the official can learn how to get and provide assistance by meansof cooperation to fight the corruption.
Consequently, it leads to the effective combating and suppression of corruption by welltrained officers. Moreover, meetings and interactions during the training can simply set up a
network of officers, including those utilizing person-to-person channels, for the exchange of
information, that is, informal international cooperation.

III.

LEGAL MEASURES AGAINST CORRUPTION IN THAILAND

To combat corruption, it is vital to have substantive law, procedural law and the law oninternational cooperation. Thailand has introduced a number of laws in three categories asdetailed below.
A.

Substantive Laws Criminalizing Corruption
The substantive laws that prescribe corruption as criminal offences and impose penalties
on those who commit it in Thailand are the Penal Code, which criminalizes bribery,
misconduct, the abuse of power, fraud, embezzlement, and other forms of corruption; theOrganic Act on Corruption B.E. 2542 (1999), the Act of Administrative Measures against
Corruption Act and the Anti-Money Laundering Act B.E. 2542 (2000), 1 which specifies
corruption as a predicate offence of money laundering.2
The traditional offences under the Penal Code are fraud, embezzlement, cheating,deception, malfeasance in office (including judicial office).
In addition, there is the Regulation of the Office of the Prime Minister on Procurementthat applies to the procurement proceedings to provide transparency in purchasing of goods
and services of the governmental organization at all levels. In line with it, the Act on the
Offense Relating to Submission of Bids or Tender Offers criminalizes conspiracies for illegal
bidding and government procurement. The Organic Act on Corruption imposes duties on
persons holding political positions to comply with transparency regulations and criminalizing
violations. In the private sector, the Act on Undertaking of Financial Business and Credit
Financier Business and the Securities and Exchange Acts similarly put duties and penalties on
professionals and business executives.
1.

The Procedure Law
The procedure laws set forth the regulation for supervision activities and empower theauthorities to take relevant measures to combat corruption crimes.

Apart from the traditional competent officers under the Code of Criminal Procedure, theOrganic Act on Corruption B.E. 2542 (2000) (the Prevention and Suppression of AntiCorruption)3sets up the National Anti Corruption Commission (NACC) with the mission tofight corruption by politicians, executives of local governmental bodies and other high level
officials. The Act on Administrative Measures in Combating Corruption established the Officeof Public Sector Anti-Corruption Commission (PACC).
The Organic Act requires the politicians and senior officials to report their assets, while
it also provides the two commissions with procedures for investigation and bringing cases
against officials. The authorities of the two Commissions are categorized by the level of thesuspect. The NACC deals with the offences committed by politicians and executives. Other
suspects falling under the authority of the NACC are subject to the authority of the PACC.

1

Amended by the 2nd Anti-Money Laundering Act B.E. 2546 (2003) and the 3rd Anti-Money Laundering Act
B.E. 2556 (2014).
2
Section 3 stipulates that the offence in this Act includes: …(4) offenses related to cheating and fraud to the
public under the Penal Code or offenses pursuant to the Fraudulent Loans and Swindles Act….(5) malfeasancesin the office …
3
Amended by the 2nd Organic Act on Corruption B.E. 2550 (2008).

The Constitution law of B.E. 2540 as confirmed by the Constitution B.E. 2550
established the Supreme Court’s Criminal Division for Person5 Holding Political Positions withthe power to adjudicate national and local politicians who commit corruption and fail to comply
with the law, such as by failing to declare the property to the competent officer andmisrepresenting or falsifying documents and government procurement biding offers in relation
to their duties.
In the private sector, the Public Company Limited Act and the Securities and Exchange
Act imposed measures to ensure that the corporations will operate with good governance andaccountability under the supervision of the Securities and Exchange Commission.
B.
1.

The Laws on Mutual Legal Assistance and Extradition
Mutual Legal Assistance
The Act of Mutual Legal Assistance in Criminal Matters B.E. 2535 (1992) and theExtradition Act B.E. 2551 (2008) are mainly tools for formal international cooperation. The
first law entitled the authority to execute the assistance requested and to place requests toother countries.
In practice, the relation between domestic law and international law including treaties oninternational cooperation may be different. Many countries apply international law in theirterritory automatically. On the contrary, other states, for example Thailand, requires theaccession by enacting domestic law to implement the treaty. Thai law by the Act on
International Cooperation in Criminal Matters entrusts the duty of the Central Authority ininternational cooperation in criminal matters (MLAT) to the Attorney General.
The available assistance under the Act on International Mutual Assistance in Criminal
Matters B.E. 2535 includes4
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)

Taking statements of persons,
Providing documents, articles and evidence out of Court,
Serving documents,
Searches,
Seizure of documents or articles,
Locating persons
Taking the testimony of persons and witnesses or adducing documents andevidence in court, and requesting forfeiture or seizure of property
Transferring persons in custody for testimonial purposes
Initiating criminal proceedings

The following chart shows the process of international mutual legal assistance incriminal matters.

4

Amended by the 2nd Act of International Mutual Legal Assistance in Criminal Matters B.E. 2559 (2016).

The requesting authority
Requesting official

International affairs

Central Authority of Requesting State
Ministry of Foreign Affairs

Designated Central Authority

Central Authority of Requsted State
Ministry of Foreign Affairs

Central Authority

Competent Official
Competent Official

International Affairs

EXECUTION OF REQUEST
Competent Officer
Execution Officer

International Affairs

Central Authority of the Requested State
Central Authority

Ministry of Foreign Affairs

Central Authority of the Requesting State
Ministry of Foreign Affairs

Central Authority

Requesting OfficeInternational Affairs Requesting official

2.

Extradition
The Extradition Act B.E. 2522 empowers the Thai government to extradite fugitives who
are alleged or accused of having committed criminal offences or the defendants for whom thecourt has reached a verdict to punish them under treaties, and in cases without treaties, throughdiplomatic channels.

However, extraditable offences must be prescribed in the law namely having a penalty
of not less than 1-year imprisonment and must be a criminal offence in both the requesting state
and the requested state. The assistance is given on the basis of reciprocity and comity and thecharge against the targeted fugitive must not be a military or political offence. The extradition
shall be on the basis of reciprocity and with regard to the jurisdiction of Thailand over the crime
as well as the availability of evidence to prove probable cause that the crime was committed.
3.

Forms of Cooperation
As for formal cooperation, Thailand became a signatory state to the United Nations
Convention Against Corruption (CAC) in 2003 and ratified the CAC in 20115. Thailand has
also ratified the United Nations Convention against Transnational Organized Crime andentered into extradition treaties and bilateral and multilateral treaties on mutual legal
assistance.6 Thailand has requested and rendered both extradition and MLA through formal
forms of international cooperation under the existing treaty and through diplomatic channels
in order to combat corruption.
Regarding informal cooperation, the Thailand Anti-Corruption Agreements
Coordination Center (TACC) was set up in the NACC as a national focal point for compliancewith the United Nations Convention against Corruption. The TACC has entered into
cooperative agreements with foreign counterparts on an informal basis for corruption
investigation and intelligence exchange as empowered by the Organic Act on Corruption and
the Act on Transnational Organized Crime.7
As for cooperation in training and technical assistance, Thai officials have been trained
and have contributed their knowledge and experience on many occasions to develop the law
and efficiency in combating corruption such as at meetings of the CAC forum and the UNODC
expert meeting on corruption.
IV.

PROBLEMS AND CHALLENGES

A.

Problems
In the past, Thailand faced difficulties in relation to combating corruption in the private
and public sectors. The problems in combating corruption can be illustrated in two major cases.
The first sample case is against Rakesh Saxena, the advisor of the Bangkok Bank ofCommerce Public Company Limited (BBC) and the Managing Director. The advisor was
alleged to have committed embezzlement as he set up a number of companies through whichloans from the BBC were secured by the properties with inflated prices in a very large scale. It
was also alleged that he violated the securities regulations of the Bank of Thailand andexceeded his authority of granting loans, since they were approved by the managing directorof the bank unfaithfully. The loan scheme led to the loss of more than a billion Baht and ended
5

United Nations Office of Drugs and Crime. United Nations Convention Against Corruption Signatories Status
December 2015. thttps://www.unodc.org/unodc/en/treaties/CAC/signatories.htm
6
For example, Extradition Treaties with the Great Britain, the USA, Cambodia, Bangladesh, Indonesia, Lao
PDR, and Viet Nam, the ASEAN Treaty on Mutual Legal Assistance, Mutual Legal Assistance in Criminal
Matters Treaties with the USA, Australia, and Viet Nam.
7
Such as the Memorandum of Understanding on Cooperation in Prevention of and Fighting Against Corruption
between the National Anti-Corruption Commission of the Kingdom of Thailand and the Office of the
Ombudsman of the Philippines

in the collapse of the BBC. The accused flew to Canada and transferred the money to anothercountry.
The process of his extradition to Thailand took years even though there was an
extradition treaty between Thailand and Great Britain, which has been acceded to by Canada.
The proceeds of crime were transferred to a third country and were seized under international
cooperation or mutual legal assistance in criminal matters. However, like the law of Thailand,
the law of the requested state prescribed that the proceeds of crime seized are to be forfeitedand become public domain. As a result, Thai officials had to withdraw the seizure and pursue
repatriation of the assets under the civil procedure of the requested country.
The second case is the case of Mr. Taksin Shinawatra who was the former Prime
Minister. The Supreme Court’s Criminal Division of Persons Holding Political Positions
imposed the penalty of 2 years’ imprisonment. However, before the court read the judgement,
he absconded to other countries. Thai officials have sought his extradition by formallyrequesting his extradition to a state party to the extradition treaty. However, the requested staterefused his extradition on the basis that it was a political offence.
From the two cases and the aforementioned charts, it is clear that formal international
cooperation takes a very long time.
Both extradition and MLA are conducted on the basis of dual criminality, namely therequest must be for the commission of an act that constitutes crime in both the requesting andrequested state. Also, the offence must not be military or political in nature. In the meantime,
there is no explicit definition of political offence, which was the ground of refusal.
As for the investigators and the requesting official, the investigators of corruption in
Thailand are the police, the Department of Special Investigation (DSI), the NACC and the
PACC. In the past, the competent officers for executing requests were only the police. Hencewhen the investigators that conducted the investigation are the DSI or other agencies, there
were difficulties in practice because the Central Authority had to send the request to the police
and the police had to seek cooperation from the DSI, NACC or PACC.
Furthermore, there is no regulation dealing with expenses and costs arising from theexecution of the request and the sharing of assets or the proceeds of crime seized under legal
cooperation scheme. This resulted in the lack of remedies on the part on the injured person
including the organization as well as the government budget, which is derived from taxpayers.
Informal channels of international assistance or cooperation may also face problems inthat the competent officers especially in local areas have little knowledge of the applicable lawof their own jurisdiction, the other jurisdiction and available international cooperation
measures. In certain cases, the practitioners felt that they had not gained trust from their foreigncolleagues. Sometimes, their requests were even refused.
B.

Challenges
Corruption is multi-faceted in nature. Many factors influence crimes including corruptionthat are usually sophisticated and cover many layers. At the center of the factors are theindividual factors including the thoughts, personal values, beliefs and skills of the individuals.
The second layer is the family relationships. The factors influencing crimes are the family
values, norms and expectation, etc.

Third, communities, including schools and organizations, can influence crime throughtheir policies, mentors, and availability and lack of supporting services. At the wider national
level, culture, media and economy are other factors that influence crime.
Last, at the global level, world politics, the global economy, etc. are factors influencing
the risk of crime.8 Consequently, to combat corruption, measures should cover all levels andextend to both preventive and suppression measures.
V.

PROGRESS IN INTERNATIONAL COOPERATION FOR
COMBATING CORRUPTION

After the ratification of the Convention against Transnational Organised Crime, the
new Act of Mutual Legal Assistance in Criminal Matters B.E. 2559 was published in theRoyal Gazette and entered into force in April 2016.The new Act brings about the remarkablechange in legal assistance as identified in the table below.
IssuesCompetent official

Asset recovery
Asset sharing andcontribution
Transfer of criminal
proceedings
Informal cooperation by
agencyACT B.E. 2535 (1999)
 Police, Prosecutor,
 Director Generalof the Correction
Department

ACT B.E. 2559 (2016)
 Police, DSI,
 Prosecutor,
 Director Generalof the Correction
Department
 Others-

In July 2015, the Organic Act on Corruption B.E. 2558 (2015) was enacted. Itempowers the NACC to be the competent official under the new Act on Mutual Legal
Assistance in Criminal Matters. In addition, Section 3 inserts the provision to empower the
NACC to investigate corruption of foreign officials and officers of international organizations.
If a fugitive escapes during the process of investigation and trial, the time period of his escapewill be excluded from the prescription. The penalties are imposed by this Act against theperpetrators range from fine to capital punishment. On 7 July 2016, the 3rd Organic Act on
Corruption B.E. 2559 (2016) was published in the Royal Gazette and became a new law that
imposes capital punishment on corruption by officials.
In addition, there has been progress in the organizations. The PACC has become an
independent organization that is separate from the Ministry of Justice. The Office of the
Attorney General set up the Department of Anti-Corruption in October 2015. The Division of

8
United Nations Office of Drugs and Crime. 2010. Handbook on the United Nations Crime Prevention
Guidelines. Vienna, Austria.

Corruption of Government Officials was set up in the Central Criminal Court to ensure theexpertise of the officials responsible for corruption cases.
VI.

CONCLUSION

In conclusion, Thailand has recently exercised significant efforts to combat corruption invarious aspects. However, there might be future problems which are obstacles to the effective
combating of crime. The obstacles may be the speed of formal cooperation which usually takes
a long time; the refusal to extradite the politician-fugitives in cases of corruption; and in thecase of corruption punishable by capital punishment, when Thailand seeks extradition, itsrequest may be refused if the offence for which extradition is being sought carries the death
penalty.
Therefore, future cooperation in regard of capacity-building and knowledge of competent
officers and organizations is needed, for example, to deal with the need of assurances that thedeath penalty will not be imposed to avoid refusal on the ground of death penalty.
International cooperation is an important tool for combating corruption. The mechanisms
or measures available should cover all layers of the society.
 Individual, family, school and local community education is needed to spreadawareness of the norms, thoughts, beliefs, values, and policies against corruption.
 At the national level, there should be strong political will to combat corruption. Then
there must be a strong legal mechanism criminalizing corruption and imposing serious
penalties. The enforcement of laws and regulations should be conducted widely,intensively and through expert professionals. The measures such as capacity-building
should be undertaken on a regular basis.
 At the international and global level, there should be a sincere and serious drive tofight corruption and render assistance. For example, corruption by politicians should
not be regarded as political offences. Otherwise, all the politicians will have immunityfrom liability arising from corruption and can simply escape from the liability, causing
grave damage to the society.
Furthermore, to ensure effective international cooperation, all prosecutors, police, thecourts, legal professionals, lawyers, and other government agencies should cooperate
nationally and internationally. Training and capacity-building in prevention and suppression ofcorruption and in acquiring and rendering assistance to other agencies, including colleagues ofother jurisdictions, should be promoted and supported by states and international organizations.

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