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NCCC Journal
ISSN 1906-2087

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E-mail : nccc_info@nccc.go.th
research@nccc.go.th

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NCCC Journal
ISSN 1906-2087

Vol 1 No.1 : January 1, 2008

Publisher
The National Counter Corruption
Commission
165/1 Pitsanuloke Road, Dusit District,
Bangkok 10300
Telephone : 66-2207-0171
Fax : 66-2207-0171
E-mail : nccc_info@nccc.go.th
research@nccc.go.th
Advisory Board

Objectives

To serve as the center for compiling and

disseminating research findings and other
academic works on corruption prevention and
suppression.

To encourage the use of the research findings

and academic works and to enhance public
awareness to collectively counter the
corruption.

To promote collaboration and coordination in

managing research information on countering
corruption among the agencies and researchbased institutions.

To promote the exchange of information and

documents among the concerned agencies and
networks.

Professor Dr. Medhi Krongkaew

Professor Dr. Pakdee Pothisiri
Chief Editor
Professor Dr.Vanpen Surarerks
Editorial Board
Assoc. Prof. Dr. Kowit Kangsanun
Professor. Dr. Jaturon Thirawat
Asst. Prof. Dr. Dararatt Anantanasuwong
Asst. Prof. Dr. Rawiwan Tenissara
Lecturer Samart Srijumnong

Publishing Period
Annual

Managerial Board
Mr. Chaiyot Sintuprasit
Manager
Mrs. Ratchanij Kiatpinyo Asst. Manager
Mrs. Sirirat Vasuvat
Mrs. Chintana Ploypatarapinyo
Mrs. Sunee Tanusit
Mr. Pichit Khamma
Miss. Suthida Rakkaew

Views expressed in the articles published in

this Journal exclusively belong to the authors.
and do not necessarily reflect the official
position of the NCCC.


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Anti-Money Laundering Laws and Cases in the United States
Chief Judge B.Lynn Winmill
US. District CourtDistrict of Idaho

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Table of Content
Founding Father of the OCCC - NCCC
Words from the NCCC Chairperson
Editorials
Part I :

Conceptual Framework Regarding Moral Consciousness in Thai Society

Strengthening Morality for the Peoples Beneficial Happiness
Dr. Sumet Tantiwechakul
Public Servant the People Who Serve the Public
H.E. Professor Kasem Watanachai (M.D.)
Concept of Corruption in Thai Society
H.E. Former Prime Minister Anand Panyarachun

Part II :

The NCCC Commissioner on Corruption Prevention and Suppression

On Strategies to Carry out the National Agenda in Preventing and Suppressing Corruption
Mr. Panthep Klanarongran
On Corruption Prevention and Suppression
Prof. Dr. Pakdee Pothisiri
On Corruption Prevention and Suppression
Mr. Klanarong Chanthick
On Corruption Prevention and Suppression
Mr. Prasat Phongsiwapai
Suggestions and Principles for the Corruption Prevention and Suppression
Mr. Jaided Pornchaiya
Private Gains from Public Losses : How Thailand Copes with Corruption from
Conflict of Interest
Prof. Dr. Medhi Krongkaew
Standard Operational Procedures for Investigating Corruption Cases and the NCCCs
File of Inquiry
Professor Vicha Mahakun

Part III : Academic Articles on Countering Corruption

Corruption and Cultural Issues
Assoc. Prof. Dr. Sirilaksana Khoman
Legal State in Thai Society
Lecturer Wasu Sinhashthita
Private Sectors Social Responsibility: From Obligation to Strategy
Dr. Ekachai Apisakul
Anti-Money Laundering Laws and Cases in the United States
Chief Judge B. Lynn Winmill
US. District Court-District of Idaho

Part IV : Miscellaneous on NCCC from the Editorial Board

Terminology on NCCC
NCCCs Research Fund for Budgetary Year 2007-08
Summary of the Operation Under the Present NCCC
(September 22, 2006 - December 31, 2007)
Call for Papers to be Published in the NCCC Journal
NCCC Journal Subscription Form


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The government under the premiership of His Excellency Sanya Dharmasakti, the 12th Prime
Minister of Thailand, B.E. 2516-18, Founding Father of the OCCC NCCC, conceived of the idea
of setting up a counter-corruption agency to prevent and suppress corruption and wrongdoing in the
government sector, in response to the clamoring demand from the people who came out onto the streets in
the struggle for democracy on October 14, B.E. 2516. The Commission on Counter Corruption (CCC)
and its secretariat office (OCCC) were set up.
After more than 25 years of operation (about 10 years ago) the government at that time realized the
need to revise the strategies to fight corruption in a more effective way. It then established the National
Counter Corruption Commission with mandate from the B.E. 2540 Constitution as an independent agency
free from the executive branch, as well as the Office of the National Counter Corruption Commission
according to the B.E. 2542 Constitution-annex law on the prevention and suppression of corruption,
to replace the former Counter Corruption Commission and its office. The new feature was its autonomy
to deal with the problems related to corruption. It also encourages people in all sectors of society
to participate in the fight against corruption, in order to achieve its goals and mission.

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Conflict of
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Due Process of Law

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Editorial : The publication of the NCCC Journal was initiated by Professor Dr. Medhi Krongkaew,
NCCC Commissioner and Chairperson of the Sub-Committee on Research. Professor Medhi places great
significance on the publication of research findings and other academic articles related to the prevention and
suppression of corruption in government agencies and the political mechanism. The NCCC is empowered
to fight such corruption under Article 105 of the Law on the Prevention and Suppression of Corruption,
B.E. 2542. The Editorial Board of the Journal has been responsible for this publication since June 28, 2007.
It has been involved in the selection of articles written both by Thai and foreign authors to be published
in this annual Journal. In order to stimulate interest and broaden dissemination, translations of salient
parts of each article into either Thai or English have been included. The Editorial Board hopes that this
Journal will be useful and relevant to agencies or organizations in the public, private, and civil society
sectors as well as non-governmental organizations, foundations, educational institutions, independent
organizations, local administrative organizations, and interested individuals at large.
The prime goal is to foster awareness in society and encourage societal participation in the
prevention and suppression of corruption. We also hope to stimulate wider exchange of information and
the sharing of knowledge. The Journal also serves as a platform to publicize policies, goals, and progress
in carrying out the NCCCs strategic mission to prevent and suppress corruption.
The moral will to counter corruption in Thai society has become weakened at the present
time, with material gains taking precedence over social responsibility. His Majesty the King fully
recognizes this, and is quoted by Dr. Sumet Tantiwechakul in his article on Strengthening Morality for
Peoples Happiness-inducing Benefit, as saying In 10 years, Thailand should be prosperous, but
the problem is that we have to succeed in combatting corruption and should not commit it ourselves.
His Excellency Professor Kasem Watanachai clearly concludes in his article, Public Servants People
Who Serve the Public that everyone in every sector public, private or civil society should live up
to the teachings of their religions that exhort people to follow the path of honesty, truth, equality in
human dignity, and love and kindness for one another. The former Prime Minister, His Excellency
Anand Panyarachun also pointed out in his interview on Concept of Corruption in Thai Society that it is
necessary to maintain the foundations of democracy to serve as the strategy to reduce corruption. One of
these foundations is the concept of the rule of law, which readers can further find in the article Rule of Law
in Thai Society by Wasu Sinhashthita. Other foundations include transparency, accountability, freedom
of the press, and integrity of the justice system.
Similar concepts and principles in preventing and suppressing corruption are propounded by
the NCCC Commissioners. The NCCC Chairperson, Mr. Panthep Klanarongran, in particular, states
that every individual or sector has to lend a hand in eradicating corruption and this has been
declared a national agenda by this government. Professor Dr. Pakdee Pothisiri also emphasizes
that in restructuring the Office of the NCCC in compliance with the B.E. 2550 Constitution, to
efficiently combat corruption which has become complex, cooperation from all the stakeholders
in society is vital in order to attain the goal of a Thai society whose people are self-disciplined,
steadfast in morality, with every sector working together to prevent and suppress corruption.
Mr. Klanarong Chanthick focuses on the concept and principle of empowering civil society to take on an
important role in monitoring the use of state power, through social consciousness, social pressure, watching
out for any wrongdoing, and adopting a new set of values whereby everyone helps one another to maintain
integrity without fear of intimidation. This strategy must be adopted as corruption can have destructive
consequences, no matter what the economic or social system. In regard to this, Mr. Prasat Phongsiwapai

(14)


concludes in his article that for the NCCC to effectively counter corruption, the key principle is to work
collaboratively with every sector in society and build up a strong teamwork. This united force serves as the
powerful fist to fight a winning battle against corruption. Mr. Jaided Pornchaiya focuses on the administrative
system used by the NCCC Commissioners and the secretariat office to suppress corruption within the
legal framework provided by the earlier B.E. 2518 Constitution up to the present B.E. 2550 one. Professor
Dr. Medhi Krongkaew, focuses on conflict of interest in Thai society that involves government officials
extracting or amassing benefits unlawfully. Though many laws have been issued to prevent and suppress
such corruption, the enforcement of the law requires that some effort must be undertaken to improve the
officials morality and ethics. These moral guidelines should be laid down specifically for each of type
of public office. Last but not least, Professor Vicha Mahakun points out the importance of the procedures
to investigate corruption cases under the authority of the NCCC Many problems and difficulties are
encountered in these procedures, particularly the requirement that the NCCC Commissioners have to chair
every investigative committee for all cases, big or small. This causes delays in the investigation. The author
recommends that the NCCC Commissioners serve only as supervisors and oversee only the significant
or complicated cases of interest to the general public. It is not feasible for the NCCC to investigate
and prepare detailed case files for every case. A selective practice should make the investigation more
effective.
Other articles on countering corruption in this Journal present details from research findings
or academic work which would enhance knowledge and understanding and contribute towards the
mission carried out by the NCCC. The cultural aspect of corruption is investigated in one paper using
statistics and econometrics. The findings show that while cultural factors do indeed determine the level
of corruption, economic and political factors also play a prominent role. This suggests that economic
development and the design of an appropriate institutional framework can have an impact in
reducing corruption. However, though the cultural aspect is significant, there is a need to realize the
principle of legal state in Thai society and how it interacts with corruption in order to set up proper
guidelines for solving the problem of corruption in an effective way. Moreover, not only does civil
society have to realize that everyone must uphold morality and take part in the war against corruption,
the private sector has no less significant role in being responsible to society. They too have to operate
on the basis of equality and transparency as well as to have a code of conduct for the management
or entrepreneur, which should lead to a sustainable way of creating value to their business or to the
economy. This point is also made by Chief Judge B. Lynn Winmill, US. District CourtDistrict of Idaho
who wrote about law and cases of money laundering which could lead to disastrous consequences.
He says The true impact of corruption is now widely acknowledged: corruption distorts markets
and competition, breeds cynicism among citizens, undermines the rule of law, damages government
legitimacy, and corrodes the integrity of the private sector.
The content of this first issue of the NCCC Journal, should enhance knowledge,
understanding, awareness, and moral consciousness and honesty as well as the mutual responsibility
of every sector in reducing corruption in Thai society. May those who adhere to moral values receive
the blessings of our beloved King:
I wish those who stay away from it (corruption), those who are honest and determined to create
prosperity for the country, long life up to 100 years with good health, and for those who have already
lived long, good health as well. Only honesty will save Thailand from destruction

(15)

Conceptual Framework Regarding Moral Consciousness

in Thai Society

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In 10 years, Thailand should be prosperous but the point is we have to succeed in
suppressing corruption and should not commit it ourselves.
If one commits corruption, no matter how small, I wish he faces calmity. do not mean
to be rude but I want the person to feel the consequence. On the contrary those who are honest
and steadfast in their duties to create prosperity for the country, may they live to reach the age of
100 years, and have good health. Only honesty will save Thailand from devastation
Excerpted from His Majesty the Kings address to the provincial governors under the pilot
project on integrated administrative system at their audience to pledge in His Majestys presence
on October 8, 2003, at Chitralada Palace.
(Translated by Editorial Board)

*. (Dr. Sumet Tantiwechakul)

(The Chaipatana Foundation)

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All the prime religions in this world aim

at creating good people. Their preaching is often
based on the three following aspects:

1. It teaches everybody to adhere honesty

and truth.
2. It teaches everybody to realize that we
all are born with equal human dignity.
3. It teaches everybody to love and be
kind to one another.
Each society evolves along a societal
structure from the past till the present. Each societal
structure always consists of those who govern,
who trade, and who do other things. These three
substructures are presently known as the public,
private, and civil society sectors.

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* (H.E. Professor Kasem Watanachai M.D.)

(Office of the Privy Councilor)

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Everybody has to realize that people
execute their task along their position, role, and
responsibility. The ranking status, wealth or
poverty, and other forms of stratification are a
matter of societal structure. In fact, everybody has
equal dignity, the precondition for democracy to
emerge. If this assumption is agreed upon, society
then has to set up a governing system to provide
opportunities for everybody to develop to the peak
of their capacity. At the same time, the system
has to set up a framework to ensure everybodys
responsibility to the public.

?
? ?

(Translated by Editorial Board)

* (H.E. Former Prime Minister Anand Panyarachun)

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Prelude : The interview with His Excellency
Former Prime Minister Anand Panyarachun was
aimed at presenting various perspectives of the
intellectuals and high ranking officers both at
national and international levels. Their ideas should
benefit both the policy and practice in regard to the
prevention and suppression of corruption of any
form explicit or otherwise.

In order to achieve the above mentioned

goal, the interview was designed to cover major
questions to obtain six or so relevant answers:
firstly, basic information to pave the general
picture of corruption: what is it? how does it
occur? and, what are its preconditions?; secondly,
the effective strategies to prevent and suppress it;
thirdly, the clear evidence of its impact on Thai
society both in general and in specific sectors;
fourthly, its development by comparing the past
and present corruptions in the past decade; fifthly,
the way to make Thai society aware of the problem
and identify the prime target group on which
the strategies to prevent the corruption are to
emphasize, and, lastly, identifying and defining the
terms used in the discussion about corruption.

(Translated by Editorial Board)

Corruption









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The NCCC Commissioner on
Corruption Prevention and Suppression

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...We have to recognize that the suppression of all kinds of corruption requires that every
concerned sectors of the country has to lend hands in getting rid of it. The issue should be part of
the national agenda which the government has declared....
...It has been recognized that the corruption would destroy everything belonging to the
country. Every one of us - Thai people should share this feeling. At international level, some
corruption watcher organizations have placed our country on the top of the list which has worried
all of us....
(Translated by Editorial Board)

* (Mr. Panthep Klanarongran) ...

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Convention Against Corruption 2003)




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We should have been pleased that though
we have confronted with and win over the obstacles
of various kinds along the course of development
part of which rooted in the corruption, most of us
have begun to realize such threat. We are ready
to pull our force together to fight it. Having been
informed about it, we should together be able to
set up national strategy to prevent and suppress the
corruption. Moreover, we would be determined
to solve this problem and all together offer to our
beloved King with the slogan

...

(stakeholders)

We will all hands in hands to wash

corruption out of Thai soil to celebrate our Great
King.
(Translated by Editorial Board)

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(social sanction)

* (Mr. Klanarong Chanthick) ...

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In conclusion,.

we should not forget that the corruption

could destroy everything including the political,
economic, and social systems. It is necessary that
everybody has to lend hands and be determined to
do the right things without fear of any kind.
(Translated by Editorial Board)

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It can be concluded that for the NCCCs
mission to effectively counter corruption, the key
principle is to involve every sector of society in
collaborative teamwork. This united force serves as
the powerful fist to fight and conquer corruption.
(Translated by Editorial Board)

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In my view,
we should keep in mind that the success
of achieving missions goal depends on two factors:
Firstly, the effective tool, and secondly, people who

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know how to use the tool. The tools provided by
legal system include the inspection into the public
figures properties and the fact finding inquiry.
There is a need to develop the operational system
so that it is more practical which goes hand in hand
with the development of the involved personnels
knowledge, skill, and attitude. This two-sided
process is then the key strategy. Though the idea
sounds simple, the practice is not that easy.
(Translated by Editorial Board)

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* . (Professor Dr. Medhi Krongkaew) ...

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(CPI )
(CPI
)

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(World Bank Governance
Indicator on Control of Corruption)
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percentile rank .

(The Political and Economic
Risk Consultancy, Ltd.)

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(PERC 2006)

Abstract
Conflict of Interest can be regarded as a
form of corruption as the state officials involved
can derive unwarranted personal benefits from
their work, the benefits of which should belong
to the state or public. There are many forms of
conflicts of interests such as the use of information
accessible through duties in the office for personal
gains, or to extend benefits to close relatives or
colleagues. At present there are provisions in
several laws that can be used to deal with problems
arising from conflict of interest. These laws can
range from the constitution and the penal code, to
specific laws for specific groups of state officials.
The National Counter Corruption Commissioners
who are vested with primary responsibilities to
deal with corruption from conflict of interest have
jurisdiction over the use of 3 laws namely the
Organic Law on the Prevention and Suppression of
Corruption B.E. 2542, the Act on Offences Relating
to the Submission of Bids to State Agencies B.E.
2542, and the Act on Management of Partnership
Stakes and Shares of Ministers B.E. 2543. In the
near future, there may be the fourth law, the Act on
Offences Concerning Conflict of Personal Benefits
and Public Benefits. Altogether under judicious
enforcement of these laws by the NCCC and the
strict observance of the code of conduct of state
officials, corruption from conflict of interest should
decrease.

(Transparency
International (2006))

(Corruption
Perception Index CPI)
34

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(quid pro quo)

(gratification)

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Briscoe and Hermans (2001)

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(OECD)

Harvard
(conflict of commitment)
(conflict of interests)

( Harvard)

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(private capacity gain)

Michael McDonald (2007) W.Maurice

Young Centre for Applied Ethics
British Columbia

(fiduciary duty)

Raile (2004)

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FMC Raile (2004)

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Kenneth Kernaghan
John W. Langford

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or moonlighting)

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(code of conduct)

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(conflict of
interests) :

Briscoe, Andrew and Hermans H. C. L. 2001.

Combating Corruption in Botswana,
Friedrich Ebert Stiftung. Gaborone,
Botswana.
Harvard School of Public Health 2007. Policies
on Outside Professional Activities and
Commitments. http://www.harvard.edu/
academicaffairs/Conflict.html .
McDonald, Michael 2007. Ethics and Conflict
of Interest, the W. Maurice Young Centre
for Applied Ethics. the University of British
Columbia.
Political and Economic Risk Consultancy, Ltd.
PERC 2006. Corruption in Asia in 2006.
Hong Kong.
Raile, Eric 2004 . Managing Conflicts of Interest
in the Americas : A Comparative Review,
Conflicts of Interest Regulation in the
Americas. http://www.usoge.gov/pages/
international/int_files/conflicts_america.
Resnik, David B. 2007. Conflicts of Interest in
Scientific Research Related to Regulation
or Litigation, the Journal of Philosophy,
Science and Law vol. 7 April 16, 2007.
Transparency International 2006. Corruption
Perceptions Index.
World Bank 2006. World Governance Indicators.
Washington DC.

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The foundation of the NCCC legal framework or any other laws to prevent and suppress
the corruption could be generalized in term of the following 7 principles. These are for those to
engage in public affairs, the politicians, and high ranking officials. These principles are selflessness,
integrity, objectivity, accountability, openness, honesty, and leadership.
(Translated by Editorial Board)

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* (Professor Vicha Mahakun) ...

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Academic Articles on Countering Corruption

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*
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Human Development Index-HDI

Democracy Index-DI
Economic Freedom

Corruption
Perception Index-CPI

Hofstede Score

* Andrew Boname, Regional Anti-Corruption Advisor, American Bar Association-Rule of Law Initiative

** . (Assoc. Prof. Dr. Sirilaksana Khoman)

( siri_kho@nccc.go.th)
( chayunt@econ.tu.ac.th pwrasai@econ.tu.ac.th
)

66

DNA

Abstract
Corruption has often been linked to a range
of socio-cultural factors, and certain practices
such as bribery and reciprocity are often seen as
traditional or customary practices ingrained in the
cultural fabric of many societies. Anecdotes and
case studies are often presented, but statistical and
econometric studies of the relationship between
corruption and culture are few and far between.
The objective of this paper is to examine
and analyze the cross-country relationship between
corruption and culture using econometric techniques
in order to isolate the influence of cultural factors
and determine the size of the causal relationship
between the two, while controlling for the influences
of economic and political factors. Transparency
Internationals Corruption Perception Index is
used as the measure of corruption and Hofstedes
scores are used to represent cultural factors.
The analysis is conducted using data from
75 countries.

facilitation

(anecdote)
(econometrics)

The findings show that while cultural

factors do indeed determine the level of corruption,
economic and political factors also play a
prominent role. This suggests that appropriate
policy intervention can be identified, and policy
changes can have an impact on alleviating the
problem of corruption.

(International Anti-Corruption Day) ..

67

 ...

Economist Intelligence Unit,


Political Risk Services, World Development
Report, World Economic Forum, Harvard
Institute for International Development
CPI CPI =

CPI =

(Corruption Perceptions Index: CPI)

(Transparency International : IT)
Gottingen

(Hofstede Score)

Hofstede Score
Geert Hofstede
Masstricht

..

() Power Distance Index (PDI) :

CPI

The Corruption Perceptions Index (CPI) 1995-2007, Transparency International www.Transparency.org.

http://www.nccc.thaigov.net/nccc/
a_download.php?sID=23&sTB= doc_info

www.geert-hofstede.com

68

IDV

IDV

collectivist

IDV

( ) ( ) ( ) ( )
( ) ( )
() Masculinity (MAS) :

(Femininity)

MAS


MAS

()
MAS

MAS

PDI

PDI

PDI



() Individualism (IDV) :

IDV

http://www.geert-hofstede.com/hofstede_thailand.shtml

69

 ...

() Uncertainty Avoidance Index (UAI) :

(Uncertainty Avoidance)

()


LTO
LTO

Hofstede Score

UAI


UAI
()

UAI UAI

() Long-Term Orientation (LTO) :

:
www.geert-hofstede. com

LTO


LTO
70

(Cross Section)
(Secondary Data)

( ) (ii)

() (CPI)

()
GDP per Capita
() (Hofstede Score)
()
(Democracy Index)
()
(Economic Freedom)

( (i))

GDP per Capita

(Purchasing Power Parity)

71

 ...

(Hofstede Score)

(i) CPI GNP

(PDI)
(MAS)

(UAI)

(ii) CPI ECOFRE

(i) CPI PDI

DNA

MAS UAI
( (iii) (iv))

72

(ii) CPI IDV

(iii) CPI MAS

(iv) CPI UAI

73

 ...

(Spearmans rank correlation coefficient: Rs)

(GDP_PPP)
(IDV) (MAS)
(DEMO)
(ECOFRE)

(PDI)
(UAI)

(CPI)

(MAS)
(UAI)
(
)

d2
Rs = 1 - 6________
[1]
3
n -n

d
n
-1 +1 Rs
Rs Rs

74

CPI

GDP_PPP

PDI

IDV

MAS

UAI

CPI
GDP_PPP
PDI
IDV
MAS
UAI
DEMO
ECOFRE

1
0.8749*
-0.6522*
0.6872*
0.0048
-0.0889
0.7932*
0.9031*

1
-0.5802
0.6982
0.1262
-0.0073
0.7256
0.8324

1
-0.5573
0.0536
0.1956
-0.6876
-0.6594

1
0.1929
-0.1907
0.6216
0.5973

1
-0.1675
-0.0072
0.0503

1
0.0058
-0.0550

DEMO ECOFRE

1
0.8100

: STATA version 10
*

(MAS)
(UAI)

[], [], []

(Linear Regression
Analysis)

(Ordinary Least Square - OLS)

Multicollinearity
(
)

75

 ...

( i)

CPI = f (GDP_PPP)

(Marginal effect)

[]

CPI = f(GDP_PPP, PDI, IDV, MAS, UAI) []

y
xi

CPI = f (GDP_PPP, PDI, IDV, MAS, UAI,

DEMO, ECOFRE)
[]

[]

xi

( CPI)

CPI

(CPI)
GDP_PPP

PDI
Power Distance Index
IDV
Individualism
MAS
Masculinity
UAI
Uncertainty Avoidance Index
DEMO Democracy Index
ECOFRE Economic Freedom

CPI
Constant -11.4486**
(-7.81)

lnGDP_PPP 1.7475**
(11.24)
R-squared 0.6338
F-statistics 126.37
Sample Size
75

P>| t |
0.000
0.000

: STATA
version 10
**

natural logarithm

76

(CPI)
(GDP_PPP)

(R2)
.

.

Constant
-4.4638**
(-2.81)
CPI
lnGDP_PPP 1.2659**
(7.38)
PDI
-0.0221*
(-2.54)
IDV
0.0229*
(2.62)
MAS
-0.0211**
(-2.71)
UAI
-0.0155*
(-2.39)
R-squared
0.7978
Adjusted R-squared 0.7831
F-statistics
54.44
Sample Size
75

1.7475
[ GDP_PPP
]
______________

(Adjusted R2)
.

.

P>| t |
0.0060
0.0000
0.0130
0.0110
0.0090
0.0200

: STATA
version 10
**

*

(PDI) -.
(MAS)
-.
(UAI) -.


(PDI)
(MAS)
(UAI)

77

 ...

., . .

.


(ECOFRE)
.

(IDV) .


(IDV)

.

Constant -4.1675**
(-4.02)
CPI
lnGDP_PPP 0.6084**
(3.84)
PDI
-0.0061
(-0.84)
IDV
0.0210**
(2.85)
MAS
-0.0195*
(-2.47)
UAI
-0.0069
(-1.35)
DEMO
0.0947
(1.34)
ECOFRE 9.4387**
(6.21)
R-squared
0.8808
Adjusted
R-squared
0.8684
F-statistics
106.45
Sample Size
75

(Adjusted R 2)
.

(PDI)
(UAI)
(DEMO)

(ECOFRE)

P>| t |
0.0000
0.0000
0.4060
0.0060
0.0160
0.1800
0.1830
0.0000

: STATA
version 10
**

*

78

(PDI)
(UAI)


(DEMO)
(ECOFRE)
(
) Multicollinearity



[]

Constant -3.8717**
(-3.71)
CPI
lnGDP_PPP 0.6063**
(4.03)
PDI
-0.0083
(-1.06)
IDV
0.0227**
(3.18)
MAS
-0.0200*
(-2.49)
UAI
-0.0049
(-0.92)
ECOFRE 10.2236**
(6.53)
R-squared
0.8781
Adjusted
R-squared
0.8673
F-statistics
114.25
Sample Size
75

CPI = f(GDP_PPP, PDI, IDV, MAS, UAI,

ECOFRE)
[]

P>| t |
0.000
0.000
0.294
0.002
0.015
0.358
0.000

: STATA
version 10
**

*

79

 ...

(informal rules)

(culture)
(social norms) (social
sanctions)

(Adjusted R 2) .

(ECOFRE)
.



(ECOFRE)

.


(PDI)

(UAI)

(CPI)



(Hofstede Score)
(Human Development Index)
(Democracy Index)
(Economic Freedom)

80

(Regression Equation)

.
(

)

(.)
(.) (.)
(-.)

DNA

81

 ...
_____. 2007. Index of Economic Freedom
(online).
www.heritage.org/research/features/index/
index.cfm, accessed on December 7, 2007.

Heij, Cristiaan et al. 2004. Econometric

Methods with Applications in Business
and Economics. New York: Oxford Press
University.
_____. 2003a. Geert Hofstede Cultural Dimensions
(online).
www.geert-hofstede.com, accessed on
December 3, 2007.
_____. 2003b. Geert Hofstede Cultural Dimensions
(online).
w w w. g e e r t - h o f s t e d e . c o m / h o f s t e d e _
dimensions.php?culture1=91&culture2=95,
accessed on December 3, 2007.
_____. 2007. TI Corruption Perceptions Index
(online).
www.transparency.org/policy_research/
surveys_indices/cpi, accessed on December
3, 2007.
_____. 2007. World Economic Outlook Database
(online).
www.imf.org/external/pubs/ft/weo/2007/02/
weodata/index.aspx, accessed on December
5, 2007.
_____. 2007. The Economist Intelligence Units
index of democracy (online).
w w w. e c o n o m i s t . c o m / m e d i a / p d f /
DEMOCRACY_INDEX_2007_v3.pdf,
accessed on December 5, 2007.

82

*
**

..

..

Introduction
The concept or principle of legal state (in
Thai Society) has been discussed and referred to in
the free and democratic countries. This principle is
always made explicit in the Constitution which is
the highest legal framework of the country with the
intention to direct the society toward the state where
the peoples rights are truly protected. In the case of
Thailand, this legal state principle has been part of
many Constitutions. The most explicit one was in
B.E. 2540 Constitution and the present one that
of B.E. 2550. The prime substance of the legal state
principle must be spelled out in the Constitution
to assure the rights and freedom of the people. In
reality, this principle should be recognized and put
into practice. This article is an attempt to reflect
the reality of legal state principle in Thailand. How
is it operated? How is it related to the problem
of corruption? The obtained answers could help
set up the guidelines to continue suppressing the
corruption in an effective manner.

*
( ..
)
** (Mr. Wasu Sinhashthita)

83

 ...

(legal state)

(general principle of law)

( )
()
()

..

(constitutionalism)




(check and balance)

84

..

..

.
(legislative act)

(

)

. (act of government)

.
(administrative act)


.
(judicial act )



)
..

..





85

 ...

()

) (.)
(




) (.)
(
)
(.) (
()

) (.)
(

) (.)
(

)
(.)
(


) (.)
(

()
(limitation)

(.)
(

) (.)
(


)
(.) (

)
(.) (

86

..

) (.)
(

) (.)
(
)

()

()

()

(


)
()


( .

.

.
public hearing
)

()

..

87

 ...

..

.

..







(
.


.

.
)

( -)

..

( )

( )

:

(
.. )

88

()

()

. /

.
.
.
.
.
.
.
.

.
.
.
.
.
.
.
.

.
.

.
.
.

.
.
.

89

 ...

..

..

..

..


90

..

..

..

..

..

91

 ...

()

(/, /, /) ()

( /) ()

(/, -/, /, /
) ()
(/, /
) ()
(/, /)
()
(/)
()
(/, /) ()

(/, /)
()
(/) ()
(/, /, /)

92

93

 ...

_____

_____

94

*
**

Abstract

The problem of business failure and various

forms of misconduct occurring continuously
reflect the fact that operating business with social
responsibility is important. Private business
organizations such as companies must have fair
and transparent actions. Having clear morality
rules and agreements governing the administrators
behavior helps the company in finding funds and
saving costs. When business expands and enters
the highly competitive environment, the company
has also to strengthen its partners and the joint
investors. They must be characterized to stand
out above other companies, especially in regard
to the social responsibility of the company. They
should as well run the business in systematic way
which assures its profits. Such process has to be
sustained as it could effectively and efficiently
create value added to the business organizations
on the continuous basis.

(Corporate Social Responsibility : CSR) ..
Kofi Annan

* ...
**. (Dr.Ekachai Apisakul)

95

 ...

CSRI (The Corporate

Social Responsibility Institute)

(The UN Global Compact)

World Economic Forum

.. (www.unglobalcompact.org)

OECD (Organization
for Economic Co-operation and Development)

(Guidelines
for MNEs - revision 2000)
CSR
CSR
( )



CSR




OECD
CSR
CSR

. CSR

CSR (Corporate
Social Responsibility)
Philip Kotler
CSR Nancy Lee (Kotler, P. & Lee, N.,
2005)


The World Business
Council for Sustainable Development
CSR

(Martin et.al., 2005)

( )

(Corporate Social Responsibility:
96

CSR)



(good governance) (ethics)












(sustainability)

CSR ( )
CSR

CSR






CSR

. CSR

. CSR

CSR
( .
)

(
.
.
)
(
. )

..
(
)

(Triple Bottom Line Corporate Social
Responsibility ESG : CSR)
(environment) (social)
(governance)





97

 ...

. CSR

Thai Garment Development Association, 2005
CSR

Corporate-driven CSR






Corporate-driven CSR
(business process)
CSR
(CSR in process)


CSR

(CSR after process)

CSR
( )
CSR
()
()
()
()
()
()

CSR

()

()
()
()
OECD Consensus OECD
Guidelines for MNEs Revision 2000 (
)

()
()
()
()
()
()
()

Social-driven CSR

98

CSR

CSR ()
CSR

Legal Compliance

. CSR

( )
CSR

CSR in process

CSR after
process
CSR

Kotler Lee
CSR

(beyond legal responsibility)

(change from crisis)

CSR
CSR
(corporate image)
(product differentiation)
Strategic Differentiation
(change from
vision)

99

 ...

CSR

CSR Kotler
CSR

CSR

. CSR :

CSR

CSR (
- )
CSR

(Value-Based Management VBM)

Kotler CSR

CSR
CSR
CSR
CSR

CSR
100

() (asset
management strategy)

, )

()
(Economic Profit, Economic Value
Added (EVA) ()


(FCCF)
(IC)

() (capital
structure strategy)

Balanced Scorecard

(
)
(

)


( )

( ) )

(
)

( )

() (performance strategy)


(asset in place)
() (growth strategy)



(Present Value of
Growth Opportunity PVGO)
101

 ...

Balanced Scorecard
- EVA

: ()

( , )

()

()

()
()

102

(Corporate Social
Responsibility CSR)
ISO 26000 Working Draft 2 (6-10-2006)

(
)

..
.

EVA



- .

(Corporate Social Responsibility)
() : .
...

www. The Institute of Internal Auditors of

Thailand.htm.


: () -
-.

()
(www.set.or.th.).

-.

103

 ...

-.
CSR SRI
?
.

-.
(www.matichon.co.th/
prachachat/prachachat_detail.php)
.
CSR
www.manager.co.th
CSR- ...!.
.
CSR
.. -
.
_____. -
CSR ..
.
_____. CSR

.

Fahy, M., J. Roche and A. Weiner. 2005. Beyond

Governance (Creating Corporate Value
through Performance, Conformance and
Responsibility) . John Wiley & Sons Ltd.
England.
Kotler, P. and N. Lee. 2005. Corporate Social
Responsibility. John Wiley & Sons Ltd.
England.Thai Garment Development
Association. 2005. Corporate Social
Responsibility (CSR) . www.thaigarment.
org.
The United Nations Global Compact. 2007 www.
unglobalcompact.org.

104

Anti-Money Laundering Laws & Cases in the United States

B. Lynn Winmill*

The extent of the problem the extent of the

rust, if you will cannot be overstated. World Bank
officials estimate that public officials worldwide
receive more than $1 trillion in bribes each year.2
An article in Foreign Affairs last year eloquently
described the devastating effects of corruption:

Introduction Corruption
Recently in our country we experienced
a tragedy when a large bridge packed with
cars during rush-hour traffic collapsed without
warning into the Mississippi River.1 Scores of
people were killed and injured. It was a clear day
no bad weather. While it is too early to know
for sure, the collapse could have been caused by
a design flaw or perhaps a more insidious slow
deterioration over time. Day after day, iron rusts
and the concrete crumbles. Nothing dramatic just
a rotting away at the core. And then suddenly
without any advance warning a catastrophic
collapse.

The true impact of corruption is now

widely acknowledged: corruption distorts
markets and competition, breeds cynicism
among citizens, undermines the rule of
law, damages government legitimacy,
and corrodes the integrity of the private
sector 3

I bring up this example because rust acts

much like corruption of government officials.
When government officials are corrupt when
they take bribes, launder money, and dispense
favors they deteriorate their nation from within.
There is something rotten at the core. And suddenly
without any advance warning that deterioration
may cause a complete collapse.

*B. Lynn Winmill, Chief Judge, U.S. District Court District of Idaho (

)
1

(Levy, P. (2007, August 2). Interstate 35W Bridge Collapsed. Minneapolis Star Tribune p. A1. Web site: http://www.
startribune.com/462/story/1338294.html)
2
(Heineman, B.W & Heimann, F. (2006). The Long War Against Corruption. Foreign Affairs, 85, 115. Retrieved August
8, 2007 from WestLaw database (2006 WLNR 8849584).)
3
Id.

105

 ...

1. Money Laundering Overview

Corruption has an unholy companion.

While it may take many forms, it is virtually always
accompanied by the need to hide money. In some
instances, it is the need of the bribed government
official to hide the proceeds of his or her corruption.
More often, it is the need to hide money which
engenders the need to bribe government officials.
Perhaps it is a criminal enterprise trying to hide
money it received illegally. Or, it is the terrorist
organization trying to move and hide funds so as
to support its terrorist activities.

(Foreign
Affairs)
:

But regardless, money laundering and its

companion bribery strikes at the very heart of
our institutions and our governments. The power
of hundreds of billions of dollars generated by
crimes, particularly narcotic trafficking strikes at
the very core of our freedoms. Estimates of money
laundering activity worldwide range from $500
billion to $1 trillion, annually.4 It has been described
as the worlds third largest industry.5 The ability to
move monies secretly through financial institutions
allows terrorists to create the infrastructure to
support and carry out direct attacks upon our
citizens. No country is immune and no government
is immunized from these crimes. The power of

Global Programme Against Money Laundering. Retrieved August 9, 2007, from United Nations Office on Drugs and
Crime Web site: http://www.unodc.org/unodc/money_laundering.html.
5
Robinson, J (1997). The Laundrymen: Inside Money Laundering, The Worlds Third Largest Business. New York: Arcade
Publishing.

106


money can be turned on legitimate democratic
governments, destabilize large governments and
overthrow small governments. Criminals and
terrorists with vast amounts of monies subvert
the democratic process by giving themselves a
larger influence in government through the use
of either force or corruption. These crimes and
terrorist activities displace legitimate economies,
industries and businesses. Criminals funnel illegal
monies obtained from criminal activities into
other businesses to allow them to operate at lower
profit margins or at a loss. This forces legitimate
businesses and industries into bankruptcy and out
of business.

It is the recognition of the profound impact

which money laundering and corruption has upon
our legal, economic, and social systems, which
has led so many nations of the world to recognize
the need to declare war on these malignancies.
Today, my hope is to talk about the efforts of the
United States in this fight against money laundering
and corruption. I want to briefly summarize the
laws enacted by the U.S. Congress, discuss some
specific cases which have been brought under those
statutes, and then end with a general discussion
of the challenges which law enforcement and
an independent judiciary face in enforcing those
laws.

Money laundering is both the vehicle for

and the result of crime. Hiding money always
conceals something much worse than a simple lust
for money. Any crime that involves money will
always involve money laundering. Historically,
these crimes involving money include piracy,
kidnapping, murder, bootlegging, prostitution,
gambling, espionage and extortion. But the rise
of narcotics trafficking caused such a tsunami
of money that it threatened the stability of
governments and world financial markets. The
movement of assets between countries and through
the international banking community was initially
an excellent way for criminals to avoid detection
by local law enforcement authorities. Borders were
seen as opportunities by criminals. Even within
the United States, for example, different internal
borders were seen by narcotics trafficking cartels
and other criminal organizations as insulating
them from detection by law enforcement agencies.
Internationally, the movement of drugs or monies
was seen by these criminals to cause even greater
confusion because of the lack of cooperation
between nations.

2. Money Laundering Laws in the

United States
2.1 The Bank Secrecy Act
Money laundering laws in the United
States start with the Bank Secrecy Act of 1970.6
The Bank Secrecy Act is premised on the truism
that transparency is an enemy of money laundering
or corruption.7 Bribes cannot take place and money
cannot be laundered in the blinding light of public
exposure or the slightly less bright light of required
disclosure. The theory of the BSA is that throwing
light on the money trail will deter most and punish
the rest.
The BSA was enacted in response to
large amounts of currency coming into the country.
Its initial provisions required that certain financial
transactions involving cash be reported to the U.S.
Internal Revenue Service. The Bank Secrecy Act
(BSA) requires individual identification by way
of filing a currency transaction report (CTR) for
any person who withdraws or deposits $10,000 or
more in cash or purchases a monetary instrument

Bank Secrecy Act, 12 U.S.C. 1951-59; 31 U.S.C. 5311-22.

Levey, S.A. (2004). The U.S. Treasury Departments Role in the International War Against Terrorist Financing and
Financial Crime. Electronic Banking Law and Commerce Report, 9, 12.
7

107

 ...
runners or smurfs who would run from bank
to bank making deposits or purchasing monetary
instruments in amounts just under $10,000 to avoid
the BSA reporting requirements.8 Also, most banks
simply ignored the BSA rules.

for $3,000 or more and makes it a crime to fail

to file, to file a false CTR or to cause a financial
institution to fail to file a CTR.
The BSA was not a true money
laundering statute but it did address the mechanics
of a money laundering scheme by imposing
criminal penalties for the movement of funds
offshore, concealing the placement of the funds in
financial institutions, and the unreported holding
of foreign bank accounts.

The requirement of the Bank Secrecy

Act requiring banks to report currency transactions
of over $10,000, proved to be largely ineffective.9
This led to the passage of amendments in 1992
the Annunzio-Wylie Money Laundering Act
requiring banks to file Suspicious Activity
Reports (SAR) for any suspicious transaction.10
The bank must file a SAR if it knows, or has reason
to know, that a transaction involved funds derived
from illegal activity including transaction designed
to avoid reporting laws.11

Banks challenged the BSA requirements

on the grounds that they violated their customers
rights under the Fourth Amendment of the U.S.
Constitution to be free from unreasonable searches
and seizures and under the Fifth Amendment to
be free from compelled self incrimination. In
1974, in California Bankers Assn v. Shultz, 416
U.S. 21 (1974), the United States Supreme Court
held BSA requirements constitutional. In another
case, United States v. Miller, 425 U.S. 435 (1976),
the Supreme Court ruled that bank customers
possess no privacy interests protected by the fourth
amendment in records of their affairs maintained
by the bank with which they deal.

The Act shifts to the banking community

the responsibility of determining which transactions
should be reported. Red flags that Banks must be
aware of include high risk geographic locations,
notorious or politically connected customers,
inherently suspicious transactions or business
lines, and transactions which are unusual for that
customer.12

However, reporting statutes like the

BSA are of limited utility. They inevitably lead to
a massive chess game between the regulators and
the money launderers, in which the creativity of
the criminal mind and the complexity of money
markets is pitted against regulators effort to stay
ahead of the game. For example, money launderers
responded to the BSA by began a process of
structuring or smurfing wherein a cell head
in a United States city would employ an army of

The bank cannot notify the subject of

the report that a SAR has been filed, and the bank
has immunity for filing a SAR in good faith. A bank
that fails to comply can be held criminally liable.
2.2 The Money Laundering Control Act
of 1986 (MLCA)
Money laundering became a crime unto
itself with the Money Laundering Control Act of
1986 (MLCA).13 This was the first U.S. legislation

8
Welling, S.N. (1989). Smurfs, Money Laundering, and the Federal Criminal Law: The Crime of Structuring Transactions.
Florida Law Review, 41, 287-339 (1989).
9
Welling, supra at note 13, p. 295.
10
Annunzio-Wylie Anti-Money Laundering Act, 12 U.S.C. 1772d, 1831m-1; 18 U.S.C. 474A, 984, 986, and 1960; 31
U.S.C. 5327, 5328.
11
See 31 U.S.C 5318(g)(1); 12 C.F.R 21.11(a).
12
Fagyal, P. (2006), The Anti-Money Laundering Provisions of the Patriot Act, St. Louis University Law Journal, 50,
1361-1395.
13
18 U.S.C. 1956, 1957. (p.7)

108


to actually describe money laundering, define it,
and prohibit it as a crime.14 It was hailed as the
most sweeping legislation to date in combating
money laundering. The MLCA imposed severe
penalties for the conduct of financial transactions
designed to launder dirty money.

conducted with the intent to promote specified

unlawful activities, (2) transactions designed
to conceal the nature, source, or ownership of
proceeds of specified unlawful activities, and
(3) transactions designed to evade reporting
requirements.17

The two key requirements of the act

are the existence of (1) financial transactions
involving (2) specified unlawful activities
(SUA). To be a separate money laundering crime,
the conduct in question must satisfy both of these
elements.

The less frequently used section

is 18 U.S.C. 1957, which is simpler, but has a
more limited application. Section 1957 contains
an offense entitled engaging in monetary
transactions in property derived from specified
unlawful activity. In essence, 1957 attempts
to punish those individuals or entities who
knowingly deal with those engaged in unlawful
activity.18 In contrast to 1956, it does not require
that the funds be used for any additional criminal
purpose nor that the defendant engaged in the
transaction with any specific intent. Thus, it has
the potential to criminalize seemingly innocent
acts or commercial transactions. In enacting
1957, Congress intended to dissuade people from
engaging in even ordinary commercial transactions
with people suspected to be involved in criminal
activity.19

Transactions involving the proceeds

of the SUAs were made criminal offenses in and
of themselves. The most lucrative of SUAs is
narcotics trafficking and is covered by title 18
U.S.C. 1956 and 1957. But these statutes have been
used against arms dealers, corrupt public officials,
robbers, timber thieves, and extortionists.
The MLCA is divided into two code
sections, 18 U.S.C. 1956 and 18 U.S.C. 1957. The
more widely used section is 1956, which includes
three subdivisions addressing: (1) domestic
money laundering and participation in transactions
involving criminal proceeds, (2) international
money laundering of criminally derived monetary
instruments, and (3) the use of government sting
operations.15 The money laundering provisions
of 1956 are commonly known as transaction
money laundering, because the prohibited act is
the financial transaction itself.16 The prohibited
financial transactions include: (1) transactions

2.3 Civil and Criminal Forfeiture

But coupled with these criminal statutes
are the Congressional forfeiture statutes, enacted
in 1986 and amended in 1988. The civil forfeiture
statute is 18 U.S.C. 981, and the criminal forfeiture
statute is 18 U.S.C. 982. The guiding principle
behind forfeiture is not to allow the criminal to
keep the riches of his criminal activity.

14
Adams, T.E.. (2000). Tacking on Money Laundering Charges to White Collar Crimes: What Did Congress Intend, And
What Are The Courts Doing?. Georgia State University Law Review, 17, 531-573.
15
Mann, T.T. (2007). Money Laundering. American Criminal Law Review, 44, 769-792.
16
Id. at 773.
17
Id.
18
Id. at 774.
19
Madinger, J. & Zalopany, S.A. (1999). Money Laundering; Ratliff, R. (1996), Third-Party Money Laundering. Stanford
Law and Policy Review, 7, 173-183.

109

 ...

Civil Forfeiture

Criminal Forfeiture

18 U.S.C. 981

18 U.S.C 982

action against the property itself

action against the defendant as a person

claimant must prove case by preponderance

of the evidence

government must prove case beyond a reasonable

doubt

property must be involved in or traceable to

the offense

government can substitute legitimate assets if tained

assets are unavailable

(1) A concurrent criminal cas is not

necessary. This is useful if the money launderer is
dead, missing, or a fugitive.

Civil forfeiture is against the property

itself rather than against the criminal. The
government may seize property based upon
probable cause that the property is subject to
forfeiture. The property owner or other interested
party (called a claimant) may contest the
forfeiture by establishing that the property is not
subject to forfeiture. The claimant must prove his
or her case by a preponderance of the evidence.

(2) The ability to reach property

involved in money laundering generally, but
where specific financial transactions cannot be
identified.
(3) The ability to reach property held
in the name of a nominee who you can prove was
involved in money laundering activity, but where
the evidence is insufficient to satisfy the heightened
evidentiary standard necessary to obtain a criminal
conviction.

Under the civil forfeiture provisions

of 981, any property involved in a transaction or
attempted transaction in violation of 1956 or 1957
or any property traceable to such property is subject
to forfeiture. Under this civil forfeiture section, all
property involved in a money laundering offense,
as well as violations of the Bank Secrecy Act,
involving currency reporting, would be subject
to forfeiture. An example of the breadth of civil
forfeiture is the crime of violating reporting
requirements. Money not reported is involved
and can be forfeited. Monies seized by customs
agents at airports and harbors from defendants
attempting to transport it out of the country without
filing the appropriate forms leads to seizure and
forfeiture.

Criminal forfeiture, by contrast, is an

action against the individual. The government
can forfeit all property of a convicted defendant
that either facilitated the crime or constitutes the
proceeds of the crime. But significantly, unlike
civil forfeiture, criminal forfeiture permits the
government to forfeit substitute assets, i.e.,
legitimate assets, if the tainted assets cannot be
reached.20
Criminal forfeiture under 18 U.S.C.
982 requires that the government prove its case
beyond a reasonable doubt. In other words, the
evidence must be sufficient to convict the criminal
defendant. This is a significant evidentiary
challenge compared to civil forfeiture proceedings,

Some advantages to using civil

forfeiture proceedings and 18 U.S.C. 981 instead
of criminal forfeiture are:

20

21 U.S.C. 853(p).

110


where the government must prove his case by a
preponderance of the evidence to obtain seized
property.

criminal sources, or both, are covertly transferred

to individuals to finance terrorist operations.22 The
Patriot Act expands the scope of money laundering
laws to cover a broader range of financial
institutions than prior laws.

In a criminal forfeiture case, the

property is first indicted just as the criminal
defendant is. The property is described in a separate
forfeiture count in the same indictment that charges
the defendant. At the time the property is indicted,
it may already be in the governments possession,
but often the government must go out and restrain
or arrest the property. To gain control in criminal
forfeiture proceedings, temporary restraining
orders and seizure warrants are used.

It also requires financial institutions to

implement programs designed to deter and detect
instances of money laundering. It expands the list
of predicate offenses that give rise to a money
laundering charge, including corruption, and it
expands the reach of laws to cover more off-shore
conduct to combat global terrorism.
One expansion of the Patriot Act was
to fill gaps in the Money Laundering Control Act.
The Money Laundering Control Act of 1986,
creates liability for any individual who conducts a
monetary transaction knowing that the funds were
derived through specified unlawful activity. One
such specified unlawful activity is the bribing of
a foreign official. The Act was amended in 1992 to
include a felony violation of the Foreign Corrupt
Practices Act (FCPA) as a predicate offense for the
purpose of a money laundering prosecution. See
18 U.S.C. 1956(c)(7)(D).

Remember that criminal forfeiture

proceeding have a significant advantage over
civil forfeiture because it allows for substitution
of assets. As an example, if $100,000 of tainted
funds were still in the bank, the government would
obtain a seizure warrant and probably proceed
with a civil forfeiture. But if the money cannot
be located, then the government would proceed
with a criminal forfeiture because once they have
an order forfeiting $100,000, they can forfeit
substitute assets.21 Also, substitute asset provisions
now allow for forfeiture from a defendant who
acts as an intermediary for the money launderer if
he conducted three or more separate transactions
totaling $100,000 or more in any twelve-month
period.

However, the FCPA does not reach

bribes that merely violate foreign laws (and not
U.S. laws). The Patriot Act filled that gap by
amending 1956(c) of the Money Laundering
Control Act to add a predicate offense of bribery
that would violate the laws of a foreign nation. Now
bribing a foreign official is a crime if it violates
the FCPA or if it falls under the Money Laundering
Control Act.

In any plea agreement, the forfeiture

count is usually involved and the issue is how much
or little of these assets will be forfeited.
2.4 Patriot Act

These statutes recognize the close link

between bribery and the bribe recipients need
to launder the illegal funds paid, and provided
law enforcement with an additional enforcement
tools.

The Patriot Act was a source of

substantial expansion of these laws. It targets the
financing of terrorists. Terrorist financing has been
described as a form of reverse money laundering,
where funds originating from legitimate sources,

21

U.S.C. 853(p).
Cassella, S.D. (2004). International Money Laundering: From Latin America to Asia, Who Pays? Berkeley J. Intl L.,
22, 116-122.
22

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 ...
2.5 Indirect Ways of Combating Money
Laundering

2.5.2 Prosecution for Tax Evasion

under the Internal Revenue Code

2.5.1 Racketeering Influenced and

Corrupt Organizations Act (RICO)

The Internal Revenue Service (IRS) has

prosecuted narcotic traffickers for non-declaration
of income. The IRS has a long tradition of
prosecuting famous criminals like Al Capone for
income tax evasion. The dilemma for the criminal
is that if they declare the source of their illegal
monies, they will be prosecuted for that illegal
activity, i.e., narcotics trafficking, piracy, illegal
gambling, prostitution, etc. But if they do not
declare these illegal monies, then they are subject
to prosecution for income tax evasion. Illegal
money is of no value to a criminal unless he can
enjoy it. While cash supposedly leaves no trail,
sooner or later these illegal monies must show up
as income. The sums of monies, especially from
successful criminal activities is so large that the
IRS eventually finds it.

In 1970 the United States Congress

passed the Racketeering Influence and Corrupt
Organizations Act (RICO).23 Its primary purpose
was to permit prosecution of organized crime
leaders,24 but it has been used in a much broader
fashion, including to prosecute and stop the
laundering of drug trafficking profits through
domestic American businesses. Traffickers pass
narcotics monies through businesses and utilize
these cash flows as business profits. The narcotics
traffickers even pay taxes on these narcotics monies
disguised as business profits. As a result of this
laundering, the trafficker is then free to spend
money openly in our society. Often, suspicions
on the part of law enforcement and the internal
revenue service are aroused when purchases of
luxury items such as boats, planes, and expensive
cars are purchased with no identifiable source of
income. The trafficker hopes to avoid prosecution
by disguising the monies used for these purchases
as legitimate profits. RICO laws, which permit
prosecution where an individual commits two
predicate crimes including money laundering
over a 10 year period. 25 If convicted, the
defendant faces enhanced prison sentences, and
must forfeit any ill-gotten gains as well as any
business enterprise used as part of the racketeering
activity.26

Only so much cash can be transferred

and eventually transfers of large sums move through
financial institutions. Once a criminal is identified,
the lack of a money trail can also be used as proof
of his illegal money laundering. Large financial
holdings without a legitimate source of income
can be convincing evidence. Movement between
one transaction system and another is the key to
all money laundering schemes. The movement of
money from a cash transaction scheme to a business
transaction system is where the money launderer
is always the most vulnerable. Remember the
objective is to have access to clean appearing
money at the end of the process.

23

18 U.S.C. 1961-1968.
According to the Statement of Finding and Purpose of RICO: It is the purpose of [RICO] to seek the eradication
of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new
penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged
in organized crime. See Section 1 of Pub. L. 91-452.
25
18 U.S.C. 1962.
26
18 U.S.C. 1963(a).
24

112


2.6 Sentencing For Money Laundering

(2) A m S o u t h B a n k o f
Alabama

A violation of the transporting or

transfer provisions of the Money Laundering
Control Act expose the accused to a maximum of
20 years in prison and a fine of $500,000 or twice
the value of the funds laundered.27 A violation of
the transaction-in-criminal-proceeds provisions of
the Act expose the accused to a maximum of 10
years in prison and a fine.28

In 2004, AmSouth Bank

agreed to pay fines of $50 million for civil and
criminal violations of the Bank Secrecy Act.30
Investigators were initially prompted to investigate
the Bank when it failed to promptly respond to a
Grand Jury Subpoena. When investigators checked,
they found the Bank failed to have sufficient antilaundering controls. Also, the Bank failed to file
a Suspicious Activity Reports (SARs) under the
Bank Secrecy Act despite numerous red flags in
deposits to a certain account.

Under the U.S. Sentencing Guidelines,

money laundering is treated as an offense deserving
of long terms of incarceration. The base offense
level, which drives the guideline range set by the
Sentencing Guidelines, make this point rather
clearly. The base offense level of money laundering
ranges from 17 to 23, well above bribery (7 to
12); insider trading (8) and blackmail (9) but
significantly below serious drug trafficking charges
(26 to 38).

The Bank was not filing the

SARs because there had been no loss to the Bank,
the offending party had died, or the suspicious
activity had been telephonically reported to law
enforcement. None of that excused the SAR filing
requirement, however. So the Bank received a $50
million fine.

There are a few significant cases :

2.6.1 Significant Cases

(3) Riggs Bank

(1) William Jefferson

In 2004 and 2005, Riggs

Bank agreed to pay substantial fines and penalties
for violation of various money laundering statutes.
In 2004, Riggs Bank paid a $25 million civil
penalty and pled guilty to a criminal charge based
upon deficiencies in the Banks BSA compliance
policy with regard to its handling of the deposits
of various officials in the countries of Equatorial
Guinea and the Kingdom of Saudi Arabia.
Specifically, the consent decree indicated that the
banks procedures (1) did not adequately identify
the risks created by the customers notorious
dealings.

In June of 2007 William

Jefferson, a U.S. Congressman from Louisiana,
was indicted after FBI found $90,000 in cash in his
freezer, during the execution of a search warrant.29
He was indicted on 16 counts, including counts
under the Money Laundering Control Act for
knowingly engaging in 3 monetary transactions
(each for $25,000), knowing that the money was
derived from criminal activity. His case has not yet
been resolved.

27

18 U.S.C. 1956(a)(1)-(3).
18 U.S.C. 1957(a),(b)(1)-(2).
29
http://topics.nytimes.com/top/reference/timestopics/people/j/william_j_jefferson/index.html?8qa
30
Braverman, P. (2005). Rocked by a Seismic Shift in Banking. Legal Times, 28, 22.
28

113

 ...
(5) American Express Bank

Less than a year later,

Riggs bank settled a separate criminal charge of
failing to file SARs with regard to accounts held
by Chilean dictator Augusto Pinochet, agreeing to
pay a fine of $16 million and to pay restitution of
$9 million to the victims of Pinochet.31

International
Recently on August 6,
2007 American Express Bank International
(AEBI) agreed to pay $65 million to settle money
laundering charges brought under the Bank Secrecy
Act as part of a deferred prosecution agreement.34
The settlement included the forfeiture of $55
million in laundered funds and a $10 million fine,
and was the largest financial sanction imposed upon
a U.S. bank for money laundering activities. AEBI
is a Miami-based banking division of the global
credit card giant American Express. It catered
to wealthy Latin American clients. According
to a press account, AEBI operated in certain
high-risk jurisdictions and business lines without
commensurate systems and controls to detect and
report money-laundering and other suspicious
activity in a timely manner, as well as manage the
risks of money laundering, including the potential
for illicit drug trafficking-based Black Market Peso
Exchange transactions.35

(4) U.S. v. Kozeny

This case illustrates the
expanded reach and interplay of the Foreign Corrupt
Practices Act (FCPA) and our money laundering
laws. On October 6, 2005, Viktor Kozeny (and
others) were arrested on an indictment alleging
violations of the FCPA and Money Laundering
Control Act. Kozeny, a Czech Entrepreneur dubbed
the Pirate of Prague by Fortune Magazine in 1996,
is charged with, among other things, paying bribes
of over $11 million to Azerbaijan government
officials.32
Kozeny is a foreign
national. There is no allegation that he conducted
his bribery on American soil. However, American
companies did send him investment money,
knowing that he would use it for bribes. That
was enough of a connection to the United States
to trigger the FCPA and the Money Laundering
Act.
33

The prosecution was based

upon a sting operation, in which large sums
of cash were deposited directly by undercover
law enforcement agents who represented they
were working for Columbian drug traffickers.
Beyond the sting operation, investigators also
found numerous private banking accounts that
were controlled by apparently legitimate South
American businesses, but held in the name of
offshore shell companies, and used to process
parallel currency exchange market transactions.
Such markets were saturated with drug proceeds,
the Department of Justice alleged, and were highly
risky for financial institutions.

Since 2005, Koen was in

prison in Bahamas waiting for the court decision
whether he will be handed over to the U.S. or to
the Czech Republic. The current decision of the
Bahamas court from June 23, 2006, is that he will
be transferred to the U.S. In 2007, however, he was
set free on caution in the Bahamas after paying a
$300,000 bail. But his co-conspirators have pled
guilty and are expected to testify against him.

31

Dash, E. (2005, January 28). Riggs Pleads Guilty in Money-Laundering Case, New York Times, p. C7.
Uchitelle, L. (2005, October 7). Three Indicted for Bribery in Oil Scheme in Azerbaijan, New York Times, p. C3.
33
Id.
34
United States Department of Justice Press Release. (2007, August 6). Retrieved August 9, 2007, from Westlaw Data
Base, 2007 WL 2235854.
35
Kirchgaessner, S. (2007, August 7). AmexCo Agrees to $65 Million penalties on Anti-Money Laundering Failings.
Financial Times USA, p. 13.
32

114


In the last 3 years, 19
financial institutions in South Florida have been
hit with sanctions for money laundering.36 South
Florida seems to have become a major center for
money-laundering prosecutions.

3. The Special Challenges of Enforcing

Money Laundering Statutes
3.1 Complexity

The FATF created a list of 40

recommendations for countries wishing to
prevent money laundering. Among those 40
recommendations is that banks pay special
attention to politically exposed persons. These
would be prominent politicians or leaders who are
most apt to be bribe-takers.

My impression is that narcotics

trafficking cases put tremendous pressure on
judges. For example, in Colombia the illegal money
was pervasive and many courageous judges were
killed. In my country, drug-related cases easily
comprise one-half of the criminal cases in both
our federal and state courts. The reason for the
pressure on the judiciary is that the investigative
techniques traditionally employed in criminal
cases are now layered with complicated financial
tracings and extensive hierarchies of criminals.
Traditional investigative techniques, such as
interviews, surveillance, informants, searches
and seizures, undercover operations, and the
like are all still essential in unraveling a money
laundering case. But money laundering causes
law enforcement to deal with financial institutions,
which are fundamentally dedicated to the privacy
of the financial affairs of their legitimate clients.
The clash between law enforcements goal of
apprehending criminals and financial institutions
goal of protecting the privacy of their clients will
continue to plague criminal justice systems all over
the world. Legislatures have looked to the courts to
apply the laws fairly and to balance the competing
goals of apprehension and privacy.

The 40 recommendations also included

language encouraging signatories to consider
utilization of special investigative techniques,
where permitted by its domestic legal system,
including sting operations, electronic or other
forms of surveillance and undercover operations.

Money laundering poses a number of

problems for criminal justice systems the world
over, including in the United States. The problems
arise on many levels. First, the facts in money
laundering cases are complex and these complex
facts give rise to numerous evidentiary problems.

2.6.2 International Anti-Money

Laundering Efforts
Obviously, money-laundering is most
often an international crime. A political leader
on the take rarely hides his money in his own
country. He wants to transfer it to a foreign safe
haven. So there needs to be some kind of top-down
enforcement at the international level.
The leading international body fighting
money laundering is the Financial Action Task
Force on Money Laundering (FATF).37 It was
formed in 1989 at the G-7 Summit. Today, FATF
has 31 member countries (China is an observer
only).38 FATFs membership encompasses the
major financial centers of Europe, Asia, and
China.

36

Bussey, J. (2007, August 8). Banking: In Florida, Dirty Money is Big Business. Miami Herald, p. A1.
See Financial Action Task Force, 13 Widener Law Review 169 (2006)
38
Id.
37

115

 ...
may be moved on a daily basis from one bank to
another. Located in different time zones, one such
center would always be open.

Second, the laws intended to combat money

laundering directly are numerous, and frequently
the most effective legal tools work are those which
work indirectly to bring money launderers to
justice.

These complex facts translate into

evidentiary problems for courts and prosecutors.
Obtaining the records and, sometimes, the people
or things necessary to try a case requires the
cooperation of both the country seeking prosecution
and any country where the suspected illegal monies
may be deposited. Indictments may be obtained
on a cartel member or pirate who is arrested in a
cooperating country that allows extradition back to
the charging country. But there may be instances
where a criminal is living outside the charging
country, but is causing great harm to that country
while another country is either harboring him or
decides it will prosecute him without honoring your
request for extradition. The prosecutor must obtain
the evidence necessary to convict the criminal.

In terms of facts and evidence, money

laundering cases differ from most criminal
prosecutions. In ordinary criminal prosecutions,
judges hear testimony and view exhibits about
whether there is direct evidence, such as an
eyewitness identification of the defendant. Often
we listen to evidence that may be circumstantial in
nature, that is, evidence from which an inference
may be drawn that the defendant committed a
crime. For example, in a homicide case in the U.S.
system, circumstantial evidence might be blood
found on the defendant or testimony by a witness
that a man was seen leaving a homicide scene that
was approximately the defendants height and
physical build, although the witness could not see
his face. If the defendant had placed phone calls to
the victims home a short time before the murder
or if there were prior threats or disagreements,
many of our jurors might believe that all the
circumstantial evidence taken together is enough to
support a reasonable inference that the defendant is
guilty, although we did not have direct eyewitness
identification of him as the killer. These types of
evidentiary issues are common issues for judges
in ordinary criminal cases.

If, for example, the charges are

conspiracy to launder illegal narcotics monies
through either real or fictitious businesses, this
requires the courts to obtain the funds, or at least
the banking records of these businesses through
the subpoena process. Obtaining such funds and
records is solely dependent upon the cooperation
of the other country where the records and funds
are located. Such cooperation is not necessarily
easy to achieve in part because the banking
industry worldwide promises confidentiality to its
customers. Whether these banks are in the Cayman
Islands, Panama, Switzerland, Austria, Venezuela,
United States, or the Philippines, the universal
problem is obtaining these records. If the bank is a
bank of the charging country, then it may be easier
for that countrys courts to get compliance with
orders issued for bank records. When the bank is
outside of the issuing courts territorial boundaries,
then we are dependent upon cooperation between
the two countries. The judiciary has its orders
honored by cooperation, not by mandate once we
are involved with international crime.

Money laundering cases, by contrast,

are much more complex in terms of both the facts
and the ability of prosecutors and judges to obtain
all the information and documents necessary to try
a case. Our judges and juries must listen to and
understand the complex facts involved in money
laundering. Offshore bank accounts may be in
the name of non-existent corporations or actual
corporations. Banking accounts and ledgers may
be anonymous or numbered accounts requiring
warrants supported by probable cause in order to
be obtained. Funds can be wired from one domestic
or world financial center to another in seconds.
Transactions may involve millions of dollars and

116


3.2 Commingling

which they came, holding that using a third party,

for example, a business entity or a relative
usually constitutes sufficient proof of a design to
conceal. See United States v. Wiley, 57 F.3d 1374,
1377, 1387-88 (5th Cir. 1995). More examples of
closely-affiliated individuals and genuine names
not defeating a charge of concealment money
laundering include:

Money is fungible. Therefore , one of

the biggest challenges is showing a link between
money that can be proven to be proceeds of
illegality and money used in transactions by
defendant. Defendants can try to hide illegal
proceeds by mixing, or commingling, those
funds with other money obtained from legitimate
or unknown sources in a single account. If illegal
proceeds are small percentage of money in account,
it can be difficult or impossible to prove that later
withdrawals or payments from account actually
represent illegal proceeds or funds from legitimate
/ unknown sources.

A case in which the defendant moved

funds out of her own accounts into
an account she held jointly with her
parents. United States v. McGauly, 279
F.3d 62, 70 (1st Cir. 2002).
A case in which the defendant paid her
sister rent in cash, using drug proceeds,
and her sister laundered funds by
using them to pay the mortgage for the
house the sister owned, but in which
defendant resided. United States v.
Miles, 290 F.3d 1341, 1354-56 (11th
Cir. 2002).

For cases involving charges of

transactions with illegal proceeds more rigorous
proof as to the source of the money involved in the
transaction is necessary (e.g., 1957). Proving the
illegal source of the funds is necessary because the
transaction is not itself unlawful activity. In other
words, tracing is required.

3.3 Intent / Knowledge

On the other hand, lesser proof of the

source of the funds is necessary in cases involving
charges of concealment of illegal proceeds or use
of proceeds to promote or facilitate illegal activity
(e.g., 1956). For such cases, it is sufficient to show
that an account is tainted by deposit of any illegal
proceeds. This lower standard is used because
the laundering activity itself is unlawful conduct.
In other words, tracing is not required for such
cases.

The requirements for intent and

knowledge are more stringent in money laundering
charges than in many of the crimes underlying the
laundering. For the vast majority of crimes in the
United States, the underlying crime often requires
only intent to do the act and does not require that
defendant know that the act is illegal.
By contrast, money laundering
requires:

Concealment can be present even when

individuals who are closely affiliated with the
defendant and genuine names are used to conceal
the illegal funds. For example, one fact situation
involved transactions between defendant, his lifelong friend, defendants wife, and a corporation
wholly owned by defendants wife. The accounts
were in their own names and the names of the
entities associated with them. The court rejected
defendants argument that there could be no
design to conceal where the checks listed the true
remitters or clearly indicated the account from

(1) Proof that defendant knew that the

money involved was the proceeds of illegal activity,
and
(2) Proof that defendant knew that the
underlying activity was illegal
Once this is shown, however, the
government need not prove that defendant knew
that the additional act of laundering the proceeds
was itself illegal.

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 ...
Federal judges have extensive
experience in the use of wiretaps as part of the
investigation of international money laundering
involving the movement of drug proceeds across
international borders. Wiretaps become an integral
part of the investigation after other investigative
techniques fail.

These challenges have led law

enforcement to be creative in their investigative
techniques. Indeed, one of the 40 FATF
recommendations for countries attempting to
combat money laundering is the utilization of
the same Special Investigative Techniques which
were originally endorsed by protocol of the
United Nations for use in combating transnational
organized crime, weapons trafficking, and
trafficking in women and children. Specifically,
the Special Investigative Techniques would include
undercover operations (presumably including
sting operations) and electronic or other forms
of surveillance and undercover operations.

4.2 Grand Jury Subpoena

Under the U.S Constitution, individuals
have the right not to be charged with any felony
that is, an offense punishable by more than a year
in prison unless it has been approved by a Grand
Jury. A prosecutor drafts the criminal charge and
a majority of the Grand Jurors must agree before
it can be officially filed. To bring evidence before
the Grand Jury, prosecutors have the power to
issue subpoenas compelling witnesses to testify
under oath before the Grand Jury or to produce
documents.

4. Special Investigative Techniques

4.1 Wiretaps
A wiretap involves eavesdropping
onto telephone calls and also monitoring e-mails
or instant message exchanges. The wiretap laws
contain strict requirements for judicial approval.
They require advance approval by a federal
judge, and are more strict than search warrant
requirements.

This is a powerful tool that prosecutors

can use against Banks and others to investigate
money laundering. The law provides that financial
institutions can be barred from revealing to any
third person including a customer the fact that
they received a Grand Jury Subpoena.

Before issuing a wiretap, the federal

judge must find:

Financial institutions are treated

differently than normal witnesses who are free
to talk and perhaps alert the target of a Grand
Jury investigation. This special rule for financial
institutions can allow investigators to remain
invisible as they trace down the money trail of a
laundering scheme.

(1) Probable cause to believe that an

individual is committing, has committed, or will
commit, one of a list of specified crimes;
(2) Probable cause that the communications concerning the at offense will be obtained
through the interception;

4.3 Sting Operations

(3) T h a t n o r m a l i n v e s t i g a t i v e
techniques have been tried and failed, or are
unlikely to succeed, or are too dangerous; and

The use of undercover agents (which

presumably would include sting operations) is
specifically approved by UN protocol as a Special
Investigative Technique and is incorporated into the
Money Laundering Control Act. It has also been a
valuable tool in the hands of law enforcement.

(4) Probable cause that the facilities

from which the communications are to be
intercepted are being used in connection with
the commission of the crime. See 18 U.S.C.
2518(3)(a)-(d).

For example, on July 1, 1998, the chief

financial officer, president, and vice president of
Supermail, Inc., a check cashing company, were

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arrested on money laundering charges stemming
from a two-year sting operation conducted by the
Federal Bureau of Investigation (FBI) and the
Los Angeles Police Department.39 The company
was one of the largest check cashing enterprises
operating in the western United States and
purported to be one of the leading U.S. money
transfer agents providing services to Mexico and
Latin America.

5. The Role of the Independent

Judiciary
The use of Special Investigative Techniques,
while critical to a successful campaign against
corruption and money laundering, also requires
an active and independent judiciary providing
necessary oversight. Under federal law, wiretap
and pen register warrants are specifically approved
in advance by a federal district judge or magistrate
judge. Likewise, issues may arise in undercover
operations as to whether the law enforcement
activities constituted entrapment or otherwise
violated the rights of the accused. A federal judge
will often be charged with making that difficult
decision.

The three executives, along with six

other employees and associates, were arrested after
a federal grand jury returned a 67-count indictment
charging conspiracy, money laundering, the evasion
of currency reporting requirements, and criminal
forfeiture. The initial target of the investigation
was a company store in Reseda, California.
Investigators, working in an undercover capacity,
approached the manager, who agreed to launder
purported drug money in exchange for a cash fee.
Specifically, the manager converted large amounts
of cash into money orders issued by the company.
As larger sums were laundered, the manager sought
the assistance of his associates working at other
store locations. Soon the companys corporate
officers were brought into the operation, and they
authorized the issuance of money orders and the
wire transfers of large sums of drug money to
a secret bank account in Miami, while the cash
was used to maintain operations at the company
stores.

So what should be the role and attitude of

the judiciary in the war on corruption and money
laundering. At first blush, it may appear that my
remarks today assume and, even encourage, an
active role for the judiciary in the war on crimes,
generally, and corruption and money laundering,
specifically. Indeed, the challenges of ferreting out
and prosecuting such activities would suggest the
appropriateness of such an active role.
However, whenever I begin to feel a bit
of a kinship with the prosecutors who appear in
my court, I remind myself of the words of Byron
White, a former member of the U.S. Supreme
Court, when he pronounced firmly that, [j]udges
and magistrates are not adjuncts to the law
enforcement team; as neutral judicial officers, they
have no stake in the outcome of particular criminal
prosecutions.40 With now almost 20 years as a
judge and more than 12 years as a federal judge, I
can say that I have truly come to see the wisdom
no the necessity of that statement.

In total, the defendants laundered more

than $3 million of drug money. The defendants
in the case pled guilty to money laundering charges
and received sentences ranging from 46 to 72
months in prison.

39

Rosenzweig, D. (1998, July 2). Valley Firm Accused of Money Laundering. Los Angeles Times, p. 1 (Metro Section).
United States v. Leon, 468 U.S. 897, 917 (1984).

40

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 ...
However, despite the complaints of
conservatives, the Supreme Court, in a 7-2
decision, declined to reverse Miranda. And there
has been a surprising lack of support in the law
enforcement community for overturning either
Mapp or Miranda. I am confident that it is because
law enforcement realizes, as I do, that judicial
oversight resulting from these decisions has led
to increased professionalism in law enforcement,
enhanced accuracy in the outcome of criminal
investigations, and greater long-term success in
the war on crime.

A truly independent judiciary is essential

to the criminal justice system for at least three
reasons.
First, it ensures that the rights of participants
in our legal systems will not be abused. This has
been the primary role of the federal judicial system
from the founding of our country. Indeed, it was the
abuse of search warrants which provided one of the
precipitating causes for our War of Independence.
This role of the judiciary, as the bulwark which
protects the rights of ordinary citizens, continues
to be a hallmark of the American legal system

Third, the independent judiciary offers

legitimacy to the criminal justice system and our
legal institutions. Although we, in the United
States judiciary, take pride in our commitment
to the Rule of Law, we also recognize that our
commitment to that bedrock principle means very
little if the public have serious reservations about
the legitimacy, even-handedness, and fairness
of our criminal justice systems. Knowledge that
a truly independent judiciary provides real and
meaningful oversight of criminal investigations
creates greater respect for our legal system at all
levels.

Second, an independent magistrate

overseeing criminal investigation will lead to
great professionalism on the part of our criminal
investigators and our prosecutors. This has come
to be an accepted view among prosecutors and
investigators in the United States. In recent years,
the U.S. Supreme Court has had occasion to reexamine one of the most significant precedent
requiring judicial oversight of police investigative
techniques Miranda v. Arizona. 41 Miranda
requires that a suspects confession cannot be used
against him at trial unless he was advised of his
right to remain silent. In addition, conservative
legal scholars have called for reversal of the
1961 decision of Mapp v. Ohio,42 which requires
exclusion of evidence obtained without a warrant
in violation of the Fourth Amendment to the
U.S. Constitution. When the Miranda and Mapp
decisions were issued by the Supreme Court, there
was a hailstorm of protest. The view was commonly
expressed that they would handcuff the police in
their efforts to rein in crime.

Thus, despite the need for Special

Investigative Techniques and extraordinary efforts
to ferret out money laundering and corruption, it is
critical that the judiciary maintain its independent
role to prevent investigative abuses, improve the
quality of law enforcement, and lend credibility to
law enforcement activities.

41

See, e.g., Dickerson v. United States, 530 U.S. 428 (2000).

Mapp v. Ohio, 367 U.S. 643 (1961).

42

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Miscellaneous on NCCC from the Editorial Board

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Corruption

* ... (Terminology on NCCC)

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Summary of the Operation Under the Present NCCC

(July 6, 2006 December 31, 2007)

Last but not least, the NCCC had set up the policy
framework for the office to quickly conclude the
lower ranking official cases in which there was no
high ranking official involved, and the loss was
minimal.

In the past year and a half (July 6, 2006

December 31, 2007), during which the present
National Counter Corruption Commission has
taken the Office, the Commission had engaged
in several kinds of operations to be summarized
as follows:

1.3 The NCCC had speeded up the

revision of the regulation, criteria, and the
rules found obstructing the mission. Some of
these revised ordinances included the NCCCs
regulations on the 2007 NCCC Meeting, and the
general administration covering the organizational
structure, personnel administration, budgeting,
financial and asset matters, and other kinds
of operation, as well as the 2nd version of the
Regulations Concerning Salary, and Compensation
of the NCCC officials and wage earners, 2006, for
instances.

1. Regarding Legal and Policy

Frameworks
1.1 There were 14,441 cases to have been
enquired into. Among these, 8,822 cases were
concluded and 60 wrong doers were identified. The
Attorney General had entered 45 cases in the action
to the Court. The police had issued the warrant of
arrest of the 81 sentenced offenders. There were
113 cases involving 184 persons accused of wrong
doing.

1.4 Sub-article 4 of the Articles 250 and

260, of the 2007 Kingdom of Thailand Constitution
has clearly issued, in response to the NCCCs
recommendations, on the matter of the disclosure
of the assets on the dates assuming and leaving the
position, to set as the framework for the standard
operational procedures including the types of
assets to be disclosed and the amendments to the
law to allow the NCCC to set up rule and standard
operational procedures to enquire into the assets
concerning the existence of them and the debts.

1.2 Until the end of 2007, the NCCC had

notified office with which the accused persons the
government officials other than the Prime Minister,
Ministers, the Representatives, and other kinds
of political personnel, had affiliated, concerning
the on-going case. The 5,117 notifications were
to urge the superior of the accused official to take
the needed preliminary action against the person
within the scope of their authority. The action might
lead to the impeachment, or other consequences
complying to the regulations set by the office. The
superior might also submit the case to the Assets
Scrutiny Committee (ASC) to further investigate.

130


2. Regarding NCCC Operational
System and Organizational
Structure

2.4 The NCCC has accelerated the

reorganization and personnel scheme to suit the its
responsibility and workload now overwhelming.
It has set up the sub-committee on personnel
administration and organizational development.
In 2007, it has issued the ordinance to revise and
reorganization the operational units under the
NCCC Office to better fit its missions.

2.1 At the present, the NCCC has

launched the public education and community
relations projects to build up the value of honesty
in the target groups of the administrators and
members of the local administrative organizations,
including its public servants and personnel, as
well as the leaders of the communities all over
the country to take part in the prevention and
suppression of the corruption. To achieve the goal,
851 training sessions covering 85,536 participants
had been organized. Moreover, the NCCC has
set up the provincial NCCC coordinating subcommittees on the pilot basis in 8 provinces,
namely, Sukhothai, Lamphun, Nongkhai, Surin,
Chanthaburi, Petchaburi, Songkla, and Surathani.
All these efforts were offensively supporting
the NCCCs operation and encouraging the
government and people sectors to take part in the
effort to build up the good governance. They were
to strengthen the peoples networks to take part in
the monitoring the exercise of the state authority.

2.5 By the end of 2007, the NCCC had

proposed the national strategies regarding the
prevention and suppression of corruption, the
NCCC strategic planning, and the 2008-09 NCCC
Operational Plan. All these were to synchronize the
national strategies of corruption prevention and
suppression efforts of every sector with the NCCC
as the coordinating organization. The strategies
were also to set up the allied networks to drive the
action of the corruption prevention and suppression
to its effectiveness.

3. Regarding the NCCC Personnel

The NCCC had launched the training
programs entitled The Upgrading of Class 6
and up NCCC Personnel to Become the Inquiry
Officers. The first group was produced in 2007
which would increase the effectiveness of the
inquiry process, the compilation of the evidence,
and the file preparation to submit to the NCCC
including the provision of other trainings to
actualize the policy of boosting the NCCC
personnels professionalism in doing their job
dealing with the corruption and could work as a
paraprofessional.

2.2 The NCCC has set up the standard

operational procedures for it personnel and subcommittees members authorized by the NCCC
to utilized the information to support their
responsibility fulfillment in compliance to the
1999 Constitution Annex Law on the Prevention
and Suppression of the Corruption or other laws
authorizing the NCCC or for the purpose of inquiry
or regarding the evidences involved or existing
under the authority of the operational units under
the NCCC, to be part of the materials for the
scrutiny or other related accusations.

4. Regarding Academic and Research

Mission
4.1 The NCCC had set up the research
sub-committee since the end of 2006 to be
responsible for operating and complying to the
NCCC ordinance on the research promoting
and supporting, issued in 2003, to encourage the
research and other related actions designated by
the NCCC.

2.3 Under the present operational system,

the NCCC has emphasized the development and the
use of the highly efficient information technology
in the realization of the missions in the works
of the corruption prevention and suppression,
asset scrutiny, and administrative and managerial
systems.

131

 ...
4.2 The NCCC has set up the policy
framework and guidelines to operate in regard to
foreign affairs, international cooperation, and the
international corruption prevention and suppression
organizations. It had set up a sub-committee
on foreign affairs to realize the goal aiming at
building up the transparency in the country and
to follow-up the commitment in complying to the
UN Convention on Countering Corruption in the
part related to the NCCC.

132

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research@nccc.go.th

134

Call for Papers

National Counter Corruption Commission Journal
(NCCC Journal)

The Office of the National Counter

Corruption Commission (ONCCC) wishes to
announce the publication of an academic journal
on counter corruption. The NCCC Journal in
January each year, Article should be submitted
before September to be considered for publication
in January.

3 cm.

4 cm.

The NCCC Journal is a reference journal of

social science and humanities, providing a forum
for academics, researchers and practitioners to
present their research findings and viewpoints on
anti-corruption activities and concepts.

2.5 cm.

3 cm.
3. The authors should submit two hard
copies of their papers and a diskette or an e-mail
attachment.

Instructions to Authors

4. The manuscript should have the

following components:

1. All manuscripts should be submitted

with the understanding that they are original,
unpublished works and are not being submitted
for publication elsewhere.

(1) Article Title in English and in Thai

(if appropriate)
(2) Authors name in English (and in
Thai and English for Thai authors) with institutional
affiliation and contact information: e-mail address,
telephone, and facsimile

2. Manuscripts must be submitted in

double space with margins as shown, with
references on separate pages and a maximum
length of 25 pages including tables and figures.
The fonts must be Angsana New 16 for articles
written in Thai or Times New Roman 12 for papers
in English.

(3) Abstract in Thai and English of

approximately 10-15 lines for Thai or 100-150
words for English
(4) Keywords (about 5 words) that
describe the articles focus.
(5) Content: about 10-20 pages.

135

 ...
Research Center

(6) Figures and Tables must be

numbered and have titles and captions. An article
should not contain more than 4 pages of figures
and tables.

Office of the National Counter Corruption

Commission
1550 Thanaphum Building, 18th Floor
New Phetchaburi Road
Makkasan Sub-District
Ratchathewi District, Bangkok 10400,
Thailand
Tel. and Fax. 66-2207-0171
E-mail: research@nccc.go.th

(7) Conclusion and Recommendations based on the research findings or papers

discussions, not exceeding 20 lines.
(8) Footnotes must be sequentially
numbered and appear at the end of the article before
the references.
(9) The bibliography or reference list
should appear at the end of the text. The reference
list should include every work cited in the text.
Please ensure that the dates, spelling and title
used in the text are consistent with those listed
in the references. For articles written in Thai,
works cited that are written in Thai should appear
first. The Journal prefers the reference system of
the American Psychological Association (APA)
which can be found at http://www.liu.edu/CWIS/
CWP/library/workshop/citapa.htm Books appear
before other kinds of materials and each reference
should contain the author, year of publication,
title, publishers name and town/city in which the
publisher is located. Please include the ISBN/ISSN,
if any. For references mentioned specifically in the
article, the page(s) from which the quotation was
taken must be in the reference.

The Journals Editorial Board will notify

the author of the review decision within 8 weeks
of receiving the manuscript.
Should the author have any questions
regarding the review process, please contact the
Secretariat of the Research Center via the address
shown above.

(10) References to websites or other

electronic forms should appear after the references
to books and articles.
Manuscripts should be submitted to
the Research Center, Office of the National
Counter Corruption Commission at the following
address:

136

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137

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NCCC Journal Subscription Form

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Editorial Board, NCCC Journal

Research Center, Office of the National Counter Corruption Commission
1550 Thanaphum Building, 18th Floor
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Bangkok 10400
66-2207-0171 Fax. 66-2207-0171
research@nccc.go.th

138