Constitutionality of Statutory Presumptions with Respect to the Criminal Offence of Insider Trading

Abstract

In 2016, the Securities and Exchange Act (No. 5) B.E. 2559 (“SEA 2016”) has introduced the statutory presumptions of knowledge or possession of inside information with respect to the criminal offence of insider trading to eliminate obstacles in law enforcement created by the high standard of proof in criminal law.

According to Section 243 and Section 244 of SEA 2016, certain groups of persons are presumed to have knowledge or possession of inside information of the issuing company. The provision which contains statutory presumptions in criminal cases like Section 243 and Section 244 have always raised the issue regarding the principle of presumption of innocence as recognized in the Constitution of the Kingdom of Thailand. The purpose of this thesis was therefore to analyze constitutionality of the statutory presumptions with respect to the insider trading offence in Section 243 and Section 244 of SEA 2016 under the 3 different approaches; (1) Pattern Approach; (2) Rational Connection Test Approach; and (3) Principle of Proportionality Test Approach.

According to the result of analysis, the author found that the statutory presumptions contained in all subsections of Section 243 and Section 244 are constitutional under the Pattern Approach. However, the analysis according to the Rational Connection Test Approach and the Principle of Proportionality Test Approach resulted in the author’s finding that Section 243 (5) is unconstitutional due to its lack of rational connection between the basic fact and the presumed fact and its failure to achieve the goal pursued under the suitability test.