COM 06/2015

Comments Collection on the Organic Act on Counter Corruption (No. 3) B.E. 2558 (2015)

On 10 July 2015 the Organic Act on Counter Corruption (No. 3) B.E. 2558 (2015), the latest amendment to the Organic Act on Anti-Corruption B.E. 2042 (1999), entered into force. CPG would like to thank those who submitted their comments on this Act presented below. (See also the interview with Dr. Sirilaksana Khoman in this issue.)

National Anti-Corruption Commission (NACC) of Thailand

Upon ratification of the United Nations Convention against Corruption (UNCAC), Thailand is under an obligation to amend its anti-corruption legislation to ensure compliance with the Convention. The amendment of the Organic Act on Counter Corruption is therefore necessary for the country’s legal system to be on par with international standards. This third amendment, the Organic Act on Counter Corruption (No.3), entered into force on the 10th of July, B.E. 2558 (2015) and contains the following significant issues:

1. Definitions for Foreign Public Official and Agent of a Public International Organisation

The definition of the terms “foreign public official” and “agent of a public international organization” has been added to Section 4. This addition authorises the NACC to inquire and decide whether any public official or agent of a public international organisation, be they Thai or of foreign nationality, commit an offence; and to inquire and decide on offences under the NACC’s authority that have been committed outside the country.

2. Statute of Limitations

Section 74/1 states that, in criminal prosecution, if the accused person or defendant has absconded during the prosecution or the consideration of the court, such period of abscondence would not be counted as part of the prescription period; and Section 98 of the
Criminal Code would not apply in case where the defendant absconds after the final judgment has been made against him/her. It should be noted that this amendment is not an extension of the prescription period in corruption cases but rather a suspension in the event
that the accused person or defendant has absconded. This section was amended in an attempt to cover all procedures of the criminal prosecution whether it is during the fact inquiry process, the prosecution process, the court trial, or the post-judgment procedure.

3. Chapter VIII/I on Criminal Proceedings against Foreign Public Officials, Agents of Public International Organizations, and the Private Sector

Chapter VIII/I has been added to provide for the procedures on fact inquiring process where a foreign pubIic official, an agent of a public international organization, or a person from the private sector has been accused of committing an offence under the Act. It further stipulates the legal liability or penalties besides the offences under the Criminal Code.

4. Liability of Juristic Persons for Bribery

Section 123/5 stipulates the liability of legal persons involved in the bribery of a public official. This section states that a juristic person will be liable if its representative or associated person bribes any public official in any position, be they local or foreign public officials, for corporate benefits, and the juristic person does not have adequate internal control measures to prevent the commission of such offence. In addition, the juristic person will be liable to a fine as it cannot be subjected to an imprisonment. The fine penalty is calculated from the damages occurred or the benefits gained so that the State would be compensated, to bring back undue benefits, and to create a deterrent effect to prevent and suppress such offences.

5. To Determine Public Officials as Offenders and to Increase the Penalties for the Offense of Bribery

Section 123/2 stipulates penalties against a public official, a foreign public official, or an agent of a public international organization who wrongfully demands, accepts, or agrees to accept any kind of bribery. The offender shall be subject to an imprisonment for the term of five to twenty years or imprisonment for life, and the fine of one hundred thousand Baht to four hundred thousand Baht, or the death penalty. The said law amendment criminalizes public officials of all titles and ranks in case they have committed an offence of bribery in order to comply with the UNCAC principles aiming to support international cooperation in prosecuting transnational corruption cases under the principle of dualcriminality. The penalties prescribed for public official’s bribery offences, namely the death penalty as well as imprisonment, as prescribed in the amended law, are in accordance with the penalties prescribed in Section 149 of the the Criminal Code for public officials accepting bribes. Nevertheless, the fines are increased in the amended law to be more appropriate with the situations.

6. The Principle of Value-Based Confiscation

Sections 123/6 – 123/8 adopt the principle of value-based confiscation where the court shall be empowered to forfeit all kinds of properties including those which are acquired by sale, disposal, transfer, or derivation. In case such properties cannot be recovered or it is unreasonably difficult to recover them, the court may prescribe the value of such things and order the offender to make such payment or seize other properties of equal value of the offender. This principle is introduced to obstruct the manipulation of those properties so that forfeiture processes can be accomplished. This is a measure which is not only efficient, but also effective.

7. Additional Powers and Duties of the NACC

Section 25 (3/1) stipulates that the NACC shall execute an agreement with the heads of organizations concerned in order to assign officials to provide assistance, support, or jointly perform duties as necessary, as a task force. Moreover, the NACC shall be eligible to proceed upon request for assistance from a foreign country in relation to a corruption case, according to Section 19 (14/I). Therefore, the additional powers and duties would help improve the effectiveness of the NACC in the fight against corruption in compliance with the UNCAC under which Thailand is a State Party. The Organic Act on Combating Corruption (No. 3) has been enacted in order to strengthen the effectiveness of the NACC in combating corruption in public and private sectors and to comply with the objectives of the Country Reform provided by the Constitution of the Kingdom of Thailand (Interim) B.E. 2557 (2014).

Kitti Wasinondh, Member of the National Legislative Assembly of Thailand

In my capacity as chair of the ad-hoc committee on anti-corruption legislative amendments, I and several key figures of the National Legislative Assembly deliberated on the proposed amendments by the NACC to the Organic Act on Counter Corruption in an effort to implement Thailand’s obligations under the United Nations Convention against Corruption (UNCAC) and to improve the effectiveness of the anti-corruption law.

The Organic Act on Counter Corruption (No.3) B.E. 2558 (2015) entered into force on 10 July 2015 with the following provisions:

First, bribery of foreign public officials and officials of international organisations is criminalised. Sanctions and fines for domestic and foreign bribery are amended to ensure that they are effective, proportionate and dissuasive.

Second, the court may prescribe forfeiture by value, apart from the existing property-based forfeiture. In case it appears that the property or benefit in a corruption case by its nature cannot or is unlikely to be recovered, the court can order the wrongdoer to make a payment at the market value. This provision aims to ensure an effective recovery mechanism when a misappropriated asset cannot be forfeited.

Third, the statute of limitation for a corruption case will be suspended in the event that the suspect has evaded the administration of justice. The provision is expected to prevent offenders from avoiding prosecution by evading the country and waiting for the statute of limitation to expire.

Forth, the liability of legal persons for bribery has been legalised. Bribes paid by an employee for corporate benefits will trigger liability of the corporation, if the juristic person does not have appropriate internal control measures to prevent the commission of such offence. Guidelines for legal persons’ appropriate preventive measures will be prescribed by the NACC.

Fifth, to strengthen the NACC as the national competent anti-corruption authority, the law stipulates that the NACC shall have the competence to collaborate with relevant organisations, including entering into agreements for technical assistance and support and jointly performing duties as necessary.

There have recently been voices of concern about Section 123/3 of the amended Organic Act on Counter Corruption, which extends the penalty, including the maximum sentence of capital punishment for convicted foreign officials. Nonetheless, it is recognised that the death penalty is not unprecedented in the anti-corruption regime of Thailand. In fact, the provision follows the content of Section 149 of the Thai Penal Code, regarding the offence of bribery by Thai officials, which stipulates a range of sanctions, from imprisonment of five to twenty years, or life imprisonment, to the maximum of death penalty, as well as fines. Although the actual sentence is left to the discretion of the Court and the maximum penalty has never been applied to any case, the amendment has sent a clear signal to the public in general of Thailand’s strong determination to combat bribery and other forms of corruption.

Lieutenant Colonel Korntip Daroj, Deputy Secretary-General, Office of Public Sector Anti-Corruption Commission, and Sutasinee Charoensidhi, Investigator, Professional Level, Office of Public Sector Anti-Corruption Commission

On March 1, 2015, Thailand became a state party to the United Nations Convention against Corruption (UNCAC) which is an international treaty against corruption. It is a very comprehensive law and possesses international anti-corruption standards. The Convention entered into force on March 31, 2011 and, since becoming a state party, Thailand is obliged to comply with the Convention. Thailand has to amend or marked up the relevant laws for the implementation of the Convention and to be accepted by the international community with regard to its efforts in the field of anti-corruption measures.

Among others the Organic Law on Anti-Corruption (No.3) B.E. 2558 (“Organic Law”) has several important provisions. Regarding prescription in criminal processes, the Organic Law stipulates that when an accused person escapes during the trial or the investigation, the statute of limitation period will be suspended. If a verdict has been already rendered and the defendant escapes after having been found guilty by a definitive judgment, the provision of prescription can also not be applied. This provision is in accordance with the UNCAC which obliges the state parties to provide longer prescription periods or to interrupt prescription periods for cases in which the accused person escapes an ongoing process of justice administration. Therefore, if the state can bring the offender back to trial, the offender can be prosecuted without any lapse in the prescription period. This could solve the problem that offenders escape from trial until prescription has lapsed.

The Organic Law defines the terms of “official of a foreign state” and “official of an international organization” and determines the
punishment for an official of a foreign state or an official of an international organization who demands a bribe. Thus, the state is able to prosecute the aforementioned officers who commit these offences.

The state can also determine the punishment which is imprisonment for a term of five years to twenty years or life imprisonment, and to a fine of one hundred thousand Baht to four hundred thousand Baht.

The death penalty has already been prescribed for any “state officer who demands bribery” according to section 149 of the Penal Code. The Organic Law increases only the fine.

The amendment allows the state to punish a foreign state officer who could not be prosecuted by the old Organic Law. Moreover, the Organic Law specifies offences and punishments for juristic persons who get involved with bribery, whether with Thai or foreign officers, if such bribery is arranged for the benefit of the juristic person and the juristic person has no appropriate internal control measures to prevent the commission of such an offence. This additional offence is in accordance with the UNCAC as well.

Furthermore, the Organic Law amends the provisions on property confiscation. The property gained from the offences includes any property that is derived from the sale, distribution transfer or transformation of the property.

Additionally, in the case that the recovery of such property is too difficult or if there is another appropriate ground to do so, the Court may prescribe the value of such property to be calculated as a money payment instead or the Court can confiscate another property which has the same value instead. The principle of this value based approach can prevent the disappearance of property which is derived from the offences.

It can be seen that corruption involving state officers may not only involve Thai state officers. Rather, it could also be foreign state officers who participate in the commission of the offences. Furthermore, private entities can also be a crucial part and a cause of corruption involving state officers. The prosecution of offenders should cover all people being part of the corruption circle. Therefore, the amendment of the Organic Law enhances Thailand’s anti-corruption legislation in order to have more efficient legal measures against corruption. The Organic Law complies with the Convention and reflects the international standard. This demonstrates how seriously the Government of the Kingdom of Thailand tackles corruption in Thai Society.

Dr. Warong Dechgitvigrom (M.D.), former Member of Parliament for the Democrat Party

Nowadays, corruption problems in Thai society are widespread and become more complicated, including their foreign links. Thailand ratified the United Nations Convention against Corruption in 2003 (UNCAC). However, Thailand did not implement its obligations in accordance with the convention by enacting particular corruption laws. This inaction could affect Thailand’s reputation in counter corruption matters.

The amendment of the Organic Act on Counter Corruption No. 3 is carried out partly for the international implementation according to UNCAC. The important matters of this amendment are highlighted in many issues. The law applies to “Officers of a Foreign State” and “Officers of an International Organization”, specifies prescription in case the accused escapes and the point in time when prescription occurs, and introduces value-based forfeiture to corruption cases. The organic law caught public attention because it imposes the death penalty to bribery offences by state officers which is a very severe punishment. It could make participants in corruption circles scared, especially participants like politicians, state officers, private sectors or even foreign state officers, for instance in the G2G rice subsidy scheme. Therefore, the participants in corruption schemes would be more careful about the outcome. The state should publicize news about punishments more frequently. If there is no publication about these matters, people will not respect the law.

Even though the law increases the punishment to include the death penalty, the actual problem of Thai society is law enforcement, which is to arrest and prosecute perpetrators. This is because Thai society still has the patron–client system, and lobbying, even though the punishment is harsh. However severe the punishment is, if the law is enforced ineffectively and does not tackle preparatory bribes, corruption problems will not be reduced. The only solution is that the state needs to suppress corruption actively. Punishments need to show perpetrators that the government takes this problem seriously. It will make corruption suppression work.

Dr. Attisit Pankeaw, Faculty of Political Science, Thammasat University

The raison d’être of the revision of the Organic Act on Counter Corruption B.E. 2558 is to make the anti – corruption operations in
Thailand consistent with the provisions laid down in the United Nations Convention against Corruption (UNCAC), as well as the
international standard, of which the country became a party in March 1st, 2011.

The key issues in this revised act are, for instance, the introduction of provisions on the crime of bribery committed by officials of foreign states and those from international organizations, the stipulation of the limitations for escaping prosecutions and legal punishments, and the prescription of value-based confiscation for those committing corruption. The revision also falls in line with the spirit of the reform of the country according to the Constitution of the Kingdom of Thailand (Interim), Buddhist Era 2557 (2014). Above all, the most discussed and the central issue in the act is the article 123/2 that prescribes death penalty as the severest punishment for those committing corruption.

On the one hand, the death penalty prescribed in the article reflects the critical importance the legislature attaches to combating
the deep-rooted corruption that has impeded the development of the country, and may have caused the country’s political crisis during the last decade.

On the other hand, the prescription of death penalty has stirred concerns in many social sectors. The main concern is that the scale of punishment is considered disproportionate according to international human rights principles, by which many countries abide. The
prescription of this punishment undermines Thailand in terms of human rights protection. Apart from that concern, there are the following misgivings:

(1) It will solve only the outcome of the problem, not the problem itself. Hence, it does not really curtail corruption.

(2) The definition and the scope of corruption is still vague and this will lump all government’s policies together as corruption.

(3) Bureaucratic red tape concerning official fiscal and financial managements may cause misunderstandings. Thus unintended and small mistakes may be mistaken for corruption.

(4) Since there is no guarantee for judicial infallibility, especially concerning the investigative and judicial processes, there is room for
miscarriages of justice.

There is a common thread through all the above mentioned concerns, namely the balance between the means (death penalty) and the end (curb on corruption). The prescription of death penalty for corruption, on the one hand, may increase the number of death row inmates who may incur this severe punishment just for trivial crimes. On the other hand, it may paralyze the policy-planning of the politicians and the policy implementation of the civil servants, for fear of accidentally committing corruption and incurring death penalty.

In conclusion, the prescription of death penalty tends to cause longterm problems for Thai society, concerning human rights violations,
political paralysis, retardation and logjams in policy-planning and administrative processes. Instead, the government should develop systems and mechanisms in politics and civil society to prevent corruption, especially by promoting anti-corruption consciousness and culture to combat corruption at its root.