The extradition process for the former prime minister is more straightforward than it may appear, but that doesn't mean it will be easily attained, writes TUNYA SUKPANICH
After the legal noose was tightened around him in Thailand, former prime minister Thaksin Shinawatra's choice of Great Britain early this month as a safe haven was not surprising, as he had also sought refuge there after the September 19, 2006 coup.
Last year around this time, the interim government led by Gen Surayuth Chulanond made an informal request for the extradition of Mr Thaksin from the UK. This was of course before his voluntary return early this year following the victory of the People's Power party (PPP) in last December's general election.
The 1911 Siam-Great Britain extradition treaty was seen as the vehicle to bring him back to face the Thai legal system. At that time arrest warrants were issued for both Mr Thaksin and his wife Potjaman after they failed to appear in the Supreme Court in August last year to defend charges against them over the Ratchadapisek land purchase scandal, in which the couple are accused of using political connections to get a much-reduced price for the land. Then as now, they cited safety reasons for their unwillingness to come home.
The extradition request was never formalised because the Office of the Attorney General (OAG) at that time took the position that as far as British law was concerned neither Mr Thaksin nor his wife had been found guilty of any wrongdoing, either in their business dealings or in matters involving state agencies. Political analysts also noted that the possibility of extradition to a country with a military-appointed government would be close to zero.
After Mr Thaksin and Khunying Potjaman surfaced in London again on Aug 9, 2008 after skipping bail on the land purchase case, however, extradition is being looked at with a new sense of urgency.
Passing the buck
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| Thousands of People's Alliance for Democracy (PAD) supporters gather in front of CentralWorld shopping complex before marching to the British embassy on August 19, to demand the extradition of former prime minister Thaksin Shinawatra to stand trial in Thailand. |
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| Supporters of former prime minister Thaksin Shinawatra gather in front of the British embassy on August 22, requesting the British government grant him asylum. |
During the past few weeks confusion has mounted over exactly what the extradition process consists of, and what the roles of various organisations such as the Office of the Attorney General (OAG), the National Police Office and the Ministry of Foreign Affairs are.
According to OAG spokesman Thanapit Munpruek, the Supreme Court issued an arrest warrant for Mr Thaksin and his wife concerning the Ratchadapisek land purchase case, which is being handled by the Supreme Court's Crime Division for Holders of Political Positions. The arrest order was issued to the police chief to bring Mr Thaksin and Khunying Potjaman back for court trial in accordance with the Extradition Act. Therefore, it is a duty of the police to ask the Office of the Attorney General to request the UK to extradite the couple.
The OAG, as the main coordinator, will then forward the request to the Ministry of Foreign Affairs, which will act through diplomatic channels.
Mr Thanapit revealed last week that the police had not yet asked the OAG to begin the extradition proceedings. According to a police spokesman, the police are waiting for verification that the couple have taken up residence in London. The police also claim they must take time to learn the details of the Ratchadapisek land case, which was initially handled by the Assets Scrutiny Committee (ASC) and then by the Office of the National Counter Corruption Commission (NCCC).
A former attorney general, Professor Dr Kanit na Nakorn, agreed to shed some light on the issue in an interview with Perspective. He said that the public had become confused because the state agencies are trying to pass the buck and denying responsibility in the extradition proceedings, but actually it is fairly clear cut.
Prof Kanit explained that under the present circumstances, the 1911 Siam-Great Britain extradition treaty is the main legal instrument to follow in order to bring former prime minister Thaksin back for court trials in Thailand.
Thailand also has an Extradition Act (1928), which deals mainly with extradition requests from other countries. In the case where Thailand is making the extradition request of another country, Article 141 of the Criminal Proceeding Code applies. This article states that the OAG is responsible for making extradition requests. An amendment to the 1928 Act also makes it clear that the OAG is the central authority for extradition requests.
According to Sirisak Tiyaphan, director of the OAG's Foreign Department, the OAG must coordinate with other involved agencies before making a final decision on whether or not to request for extradition. This decision will be final unless the cabinet reconsiders the case and thinks otherwise.
Dr Kanit said the new amendment should end the confusion over who has responsibility over the process of requesting extradition of Mr Thaksin and his wife.
Proper channels
According to Dr Kanit, there are two primary circumstances where extradition from another country may be sought by Thailand. Firstly, the legal proceedings have been completed and the court has given a guilty verdict against a defendant. In that case the state is asking for the return of the person in exile for punishment. He cited the cases of former deputy interior minister Vatana Asavahame and ex-political kingmaker Somchai Kunpleum as examples.
The Criminal Court found Vatana guilty of criminal malfeasance in issuance of land rights for the construction of a wastewater treatment plant in Samut Prakan province and handed him a jail term of 10 years.
Somchai - alias Kamnan Poh - faces 5 years and 4 months in jail for corruption charges concerning the purchase of 140 rai of land worth 93 million baht for use as a garbage landfill in Chon Buri province.
Both men reportedly fled to other countries before sentencing. Vatana is believed to be in Cambodia and the OAG is working on a request on extradition. The whereabouts of Somchai are not known.
In the second circumstance, the OAG makes a request for extradition in order to have the defendant on hand for court trials.
There are also two channels available to request for extradition.
"One is through normal diplomatic channels. The Ministry of Foreign Affairs may make a request to the foreign ministry of the country where the defendant takes refuge. When the process is completed, the ministry will report back," said Prof Kanit, adding that it is a lengthy process.
Permanent Secretary Veerasak Footrakul disclosed earlier that the Foreign Ministry has contacted its British counterpart to coordinate with the British Interior Ministry on a request to extradite Mr Thaksin.
Dr Kanit said the other channel is a new development which simplifies the process. The OAG can make a direct request to the Interior Ministry in the UK, and the British court will then make a decision on whether the extradition can take place.
However, some legal experts claim that Mr Thaksin could be extradited if the government of Prime Minister Samak Sundaravej seeks cooperation from the British government under the 1911 Siam-Great Britain extradition treaty.
Dr Kanit said the government is not required to be directly involved in the extradition of Mr Thaksin; that is the duty of the OAG.
Get started
The OAG, since receiving a clear mandate in the form of the newly-enacted 2008 Extradition Act, has started the likely long legal process of attempting to seek extradition of Mr Thaksin and his wife.
A committee led by Deputy Attorney General Julasingh Wasantsingh was recently established to coordinate with the courts and the prosecutors of each court case against the couple.
Dr Kanit accepts that it may be a time-consuming process since the former prime minister in particular is facing so many charges and there are several agencies involved.
"Not only the OAG and the police, but also the NCCC and the Department of Special Investigation (DSI)," he said.
And besides the arrest warrant issued by the Supreme Court, the request must be supported by the documents charging the alleged crime, or in the case where a verdict has already been reached, the court decisions.
Then too, the extradition process will surely be complicated and lengthened by requirements imposed by the British legal system.
One difficulty in seeking extradition is so-called double criminality - an offence must be punishable under the laws of both countries. In other words, Thai authorities must prove that Mr Thaksin and Khunying Potjaman could be prosecuted on similar charges in the UK.
The 1911 treaty lists 31 legal bases for extradition.
Dr Kanit said that double criminality is a loophole which may help keep criminals from being punished. However, he remarked that extradition criteria are a matter of cooperation between countries.
Dr Kanit said it is necessary for proceedings to begin no matter how difficult it might be to see them through. "We do not have to worry whether the former premier will be granted asylum in the UK, or if he will be shielded under the British extradition law. We also must not be afraid that the history of our failures in requests to extradite other persons will be repeated."
This is the second part of a series on the extradition of former prime minister Thaksin Shinawatra.
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