Attorney
J. W. Leeds*
Introduction
The United States government
places a high priority on international law enforcement, and plays a leading
role in the International Police Organization (Interpol). Each year the United
States enacts new laws, and amends old laws in an effort to expand its international
law enforcement powers, particularly in the areas of drug trafficking, high
tech smuggling, and terrorist activity. 1This
expanding US interest in international law enforcement has resulted in a great
number of US agencies, resources, and projects being carried out in foreign
countries. The Drug Enforcement Agency (DEA) has been at the forefront of
this activity, with its agents and representatives performing a plethora of
activities in foreign nations.2
The DEA maintains the
largest overseas law enforcement presence of any US civilian agency. Their
agents represent the United States interest in international drug control
both within the United States embassies and in diplomatic interactions with
host state officials. They maintain communication with local law enforcement
officials, provide training for local police, undertake joint drug enforcement
operations with local police, conduct unilateral actions such as surveillance
and the recruitment of informants, provide intelligence to local officials,
and lobby for changes in their host countries laws.3
Thailand has been an area
of particular interest to the United States government, and the DEA, primarily
because of the belief that it serves as the primary conduit for heroin from
the Golden Triangle transported to The United States.4
Working in conjunction with Thai officials, the DEA has been successful at
infiltrating heroin trafficking organizations within Thailand at the highest
levels, ensnaring prominent Thai government and military officials, and extraditing
them to stand trial in the United States.
Thailand, with its unique
legal system and cultural heritage, presents special problems and issues when
confronted by the interdiction of the United States government agencies such
as the DEA. These issues include the principles of Sovereignty, Conflict of
Laws, and the practical implementation of binational law enforcement cooperation
and extradition agreements. This article analyzes the legal processes used
by the United States, and the problems it encounters, in both expanding and
enforcing its law enforcement jurisdiction internationally, and particularly
within Thailand. It also examines the effects of such extraterritorial imposition
of law enforcement power by US agencies upon foreign legal systems, and in
particular, the Thai legal system.
Thailand’s Legal Heritage
The origins of Thai law
have been traced to three general sources: Thai Customary Law, Buddhist Law,
and Chinese/Maritime Law.5 During the Lanna
Kingdom period of Thailand’s history, which began in the year 1296 AD, the
influence of Buddhism on the secular 6law was
particularly strong. Royal Decrees and judgments frequently made direct comparisons
between state law and religious texts. Similarly, the Buddhist influence also
manifested itself through the use of monks as the official scribes and chief
scholars for the Kingdom. Aspects of the Vinaya, a religious text which originally
was a code of conduct for the guidance of the Sangha (monk) community, were
also the source of much secular law.
The process of reformation
and westernization of Thailand’s legal system occurred primarily during the
period between 1880 and 1930. 7 King Rama V,
also known as King Chulalongkorn, initiated the process of reformation by
enlisting the aid of foreign legal experts from such countries as England,
Belgium and Japan, to work in conjunction with the Thai Ministry of Justice.
The reformation committee, thus formed, decided to rely primarily on the Code
System of Law (also known as the Civil Law System), because of its simplicity,
clarity, and ease of organization. The committee decided to retain certain
aspects of the Common Law System as well. 8
Current Thai law is thus a combination of the Civil Law System, Common Law
9, and Thai Traditional Law. This eclectic
legal heritage has affected the way the modern Thai legal system approaches
extraterritorial application of foreign laws within their state, and against
their nationals.
Modern Thailand is a democratic
constitutional monarchy that has recently adopted a new Constitution 10that
provides for a wide range of civil rights, including the right to privacy
and the right to be free from unreasonable searches and seizures. Since Thailand
relies primarily on the Civil Law System, the decisions of Thailand’s Courts
do not have precedential weight, except for the decisions of their Supreme
Court, which are considered secondary authority.
Part
2
Footnote
* Attorney at Law, State of Hawaii, U.S.A., Federal
District for the State of Hawaii B.A. University of Texas 1983, J.D. University
of Houston 1986.
1) Ethan Nadelmann, The Role of the United States in the
International Enforcement of Criminal Law, 31 Harvard Law Journal 37, 39 (1990)
2) Id. at 39.
3) Id. at 48.
4) US Department of State Bureau of International Narcotics
Matters, Narcotics Control Strategy-Thailand, International Narcotics Control
Strategy Report (last modified November 13, 1995)
5) Andrew Huxley Foreword to THAI LAW: BUDDHIST LAW, ESSAYS
ON THE LEGAL HISTORY THAILAND LAOS AND BURMA, (Andrew Huxley, ed., 1996) at
page 16
6) Aroonrut Wichienkeeo, Lanna Customary Law in THAI LAW:
BUDDHIST LAW, ESSAYS ON THE LEGAL HISTORY THAILAND LAOS AND BURMA, (Andrew
Huxley, ed., White Orchid Press 1996) at 31-36.
7) Andrew Huxley, supra note 1 at 6.
8) THANIN KAIWICHAIN, LAW REFORMATION IN THE PERIOD OF KING
RAMA V 6-21 (Printing Office of the Prime Minister 2511).
9) The “Common law” system derives its heritage primarily from
England, and relies on judicial decisions to comprise the body of its law,
rather than strictly legislative enactments. see BLACK’S LAW DICTIONARY, 6TH
ED., 276
10) Ratatamanoon Haang Rachanajak Thai (Constitution of
Thailand).
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