Jonathan W. Leeds^**
Chaninat & Leeds Co., Ltd., Thailand Attorneys

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.¹ This 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.

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 secular⁶ law 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 Law⁹, 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 Constitution¹⁰ that 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.

The United States law enforcement interest in Thailand is justified primarily on the belief that Thailand serves as the primary conduit for heroin from the Golden Triangle to be transported to the United States.¹¹ United States government law enforcement activities within Thailand include the DEA cooperating closely with the Narcotics Suppression Bureau, units of the Border Patrol Police, and Provincial Police departments, providing intelligence, operational support and expertise in many major narcotic cases. The US government has provided commodity support to law enforcement officials, and the US Department of Defense through the US Customs provides training for the Royal Thai Customs, and supports a regional center in Phuket to monitor the movement of small vessels suspected of smuggling illegal narcotics.¹²

US Drug Enforcement Agents have also operated independently within Thailand, conducting surveillance, and using undercover informants and agents to collect evidence against drug smugglers within Thailand, who are then, typically, arrested after their arrival in the United States. ¹³ These cases, however, usually involving non-Thai nationals, present considerably less procedural complications, and general controversy, than those cases which involve the arrest of Thai Nationals on Thai soil, and their extradition to the United States.

The DEA considers Operation Tiger Trap to be their most ambitious venture to date to disrupt heroin trafficking operations in Thailand.¹⁴ The defendants included Thai citizens, some of whom occupied high level positions within the Thai government. The 13 principle defendants were considered by the DEA to be high level operators in the heroin trafficking industry in Thailand, and had been indicted in the US Federal Court for the Eastern District of New York. ¹⁵ These cases, because they involved a significant infringement of Thai sovereignty, i.e., the arrest of Thai nationals on Thai soil, and their extradition outside their homeland stand trial in the United States created considerable controversy among Thai government officials, and the Thai public.

Chao Fu-Sheng and Thanong Siripreechapong were among several defendants, eight of whom were Thai nationals, arrested throughout Thailand in November of 1994 at the request of the DEA.¹⁶

On January 10, 1995, US authorities requested the extradition of Chao Fu-Sheng. Although Chao agreed to the US request for extradition, and formally requested his own extradition, on January 17, 1995 the Thai Cabinet passed a resolution that allowed the Thai courts to consider the US request for Chao’s extradition.

The extradition of Chao Fu-Sheng was opposed by Minister of Parliament Piyanat Watcharaporn, who argued that the matter should be handled internally for the sake of the dignity of the country. However, pursuant to Article 15 of the 1983 Thai-US extradition treaty, a request such as Chao’s for voluntary extradition precluded the need for legal procedure.¹⁷ Furthermore, the Foreign Minister, and the Attorney General, arguing in favor of Chao’s extradition, stated that the extradition of Thanong Siripreechapong, who was himself a former Chart Thai Member of Parliament, had already set precedent in this matter.¹⁸ Ultimately, on April 9, 1996, the Thai Cabinet approved the extradition of Chao Fu-Sheng to stand trial in the US.

More recently, Li Yun-Chung, accused of involvement in the biggest heroin shipment in United States history, involving some 486 kilograms,¹⁹ was arrested in Thailand on July 23, 1996, and then detained in a Bangkok special prison until being released on bail on February 7, 1997.²⁰ Li, who was fighting his extradition to the United States, fled after his release from custody, and was believed to have entered Burma. This situation resulted in the United States Embassy lodging objections to Li’s release with Thai authorities.²¹

The decision by the judge, former Deputy Chief Justice, Somchai Udomwang, to release Li on bail led to protests from the US government, and to allegations of corruption within the Thai Judiciary.²² Somchai Udomwang later faced an investigation and disciplinary action by the Thailand Ministry of Justice based on his decision to grant Li bail.²³ After his recapture, Li Yun-Chung alleged that he had paid bribes in order to secure bail, and now feared for his life.²⁴ Then, in a turnabout from his earlier position, Li voluntarily requested his immediate extradition to the United States.²⁵

Part  2

Footnote

* Chaninat & Leeds Co., Ltd., (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.
** This article originally appeared in the Journal of International Law and Practice Volume 7, Issue 1, Detroit College of Law at Michigan State University, Spring 1998.
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).
11) US Department of State Bureau of International Narcotic Matters, supra note at 1.  
12) Id. at 4.  
13) See e.g. United States v. Ligenfelter, 997 F.2d 632 (9th Cir. 1993); United States v. Kimball, 975 F.2d 563 (9th Cir. 1992); United States v. Monroe, 943 F.2d 563 (9th Cir. 1991); United States v. Ogbuehi 18 F.3d 897 (9th Cir. 1994).
14) Drug Enforcement Administration Briefing Book, US Department of Justice, Operation Tiger Trap, < briefing pubs dea www.usdoj.gov>  
15) Id.  
16) Associate of Khun Sa to be extradited, Bangkok Post, April 10, 1997.  
17) Article 15 allows for a simplified procedure, and states that: “ If the person irrevocably agrees in writing to extradition after personally being advised by the competent authority of his right to formal extradition proceedings and the protection afforded by them, the Requested State may grant extradition without formal extradition proceedings.” Extradition Treaty, December 14, 1983, US-Thail., Hein’s KAV 1940, Senate Treaty Doc. 98-16, Executive Congress No. 98-29 (entered into force May 17, 1991). 
18) Associate of Khun Sa to be Extradited, supra Note 16.  
19) Nusara Thaitawat and Veera Prateepchaikul, Suspect in record United States drugs seizure jumps bail, Bangkok Post, March 12, 1997 . 
20) Id.  
21) Id.  
22) A decision regretted, Bangkok Post, March 20, 1997 .  
23) Id.  
24) Caroline Lurie, Drug Lord Fears For Life and Calls for extradition, Thailand Times, May 5, 1997 .  
25) Id.