Vous consultezAnti-corruption in thailand

AuteurSakulyouth Horpibulsuk[*] [*] State attorney to the Office of the Attorney General, the...
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I. Introduction

2 One of the classic definitions of “corruption” is defined as the use of one’s public position for illegitimate private gains[1] [1] Available at WWW. undcp. org/ corruption. html ...
suite. It is, for example, an official demands or accepts any benefit for exercising or not exercising any of his function.

3 In Thailand, the corruption problems have been to date in exist i.e. favoritism in high and low place, buying of votes for entering into parliament, sales of lucrative position in the public services, bribery of the authorities concerned to secure contracts for big state projects and non-compliance of good governance in both state and private corporate entities thereby entailing fraudulent fraud commission etc., despite of the fact that various legal and non-legal devices for prevention and suppression of the corruption in Thailand were employed to suppress and redress the situation in this respect. The corruption problems have barred Thailand from developing growth and resulted Thailand in its inefficient development in many areas.

4 Constitution of the Kingdom of Thailand 1997 fortunately tailors its legal devices to suppress and prevent the corruption problems at the time Thailand’s new political reform is gradually going ahead. By virtue of the present Thai Charter, the organizations for prevention and suppression of the corruption problems were introduced initially to Thailand, details of which will be discussed below.

II . Organizations in Supression of Corruption in Thailand

1. National Counter Corruption Commission (“NCCC.”)

5 The National Counter Corruption Commission (“NCCC.”) is a special organ for inquiring unusual wealthiness, corruption or malfeasance in office on the part of state officials. NCCC. is an independent organization established by the Thai Constitution comprising nine commission members recruited from candidate of apparent integrity and appointed by the King with the advice of the Senate.[2] [2] Constitution of the Kingdom of Thailand, Section 297...
suite

6 The main duties of the NCCC are as follows[3] [3] Constitution of the Kingdom of Thailand, Section 301, The...
suite:
1- to initiate prevention from corruption by whatsoever measures, build and increase public conscience and value in regard to integrity as well as open for public participation in prevention and suppression of corruption. The above are key elements in suppression of corruption because public conscience and value in regard to integrity and public participation for such purposes will help eliminate corruption in society.

7 2- to initiate any measure and submit opinion and suggestion to council of ministers, parliament, courts or state audit commission to reform state agencies or to set planing for projects of state agencies, state enterprises and other state units with a view to prevention and suppression of malfeasance in office, malfeasance in official duty or in judicial duty. The advice of the NCCC as to transparency in office and as to inspective system within and outside organization to be given will possibly help prevent from corruption.

8 3- to inquire into the facts, summarize the case and prepare opinion to be submitted to the Senate for possibility of removal of political officials and high rank officials from their offices. The political officials include prime minister, ministers, members of the house of representatives, members of local administrations. The high rank officials are i.e. president of the supreme court, president of the administrative court, attorney-general etc.

9 4- to inquire into the facts, summarize the case and prepare opinion to be submitted to the attorney general for possibility of prosecution against persons holding political positions.

10 5- to inquire and decide whether state officials have become unusually wealthy or has committed an office of corruption, malfeasance in office or malfeasance in judicial office so as to take further action in accordance with the organic law on counter corruption.

11 6- to inspect the accuracy, actual existence as well as change of assets and liabilities of the persons holding political positions.

12 In light of the main duties as pointed out above, the NCCC is considered as the sole authority in inquisition and ruling the corruption and malfeasance in office of the persons holding political positions and other state officials.

2. Anti-Money Laundering Office (“AMLO”)

13 The Anti-Money Laundering Office (“AMLO”) is another organization established by its law of organization, namely, the Anti-Money Laundering Act 1999 so as to perform its duties to support and collaborate with the NCCC. in prevention and suppression of corruption in Thailand. Under the umbrella of the AMLO, the socalled “Transaction Committee” (“TC”) is formed to inspect transaction and property involving malfeasance in office or in judicial office pursuant to the Thai Penal Code etc.

14 If the TC finds that any financial transactions involving malfeasance in office or in judicial office or any transactions indicating transfer, hide, conceal of property in connection with such offence takes place, the TC shall have the authority to order freezing such transaction[4] [4] The Anti-Money Laundering Act 1999, Section 35,36,48...
suite. The TC shall refer the matter to the state attorney to request the court to consider confiscating such property.

15 For the sake of inspection of the transaction and property involving said offence as pointed out above, the following persons concerned shall report to the AMLO :
1) A financial institution shall report any transactions to the AMLO. when it appears that such transaction is[5] [5] The Anti-Money Laundering Act 1999, Section 13. ...
suite (1) a transaction funded by a larger amount of cash morethan 2,000,000.00 Baht; (2) a transaction connected with the property worth more than 5,000,000 Baht (3) a suspicious transaction[6] [6] Suspicious transaction refers to a transaction of a differently...
suite.

16 Further, the institution shall cause its customers to identify themselves on every occasion of making a transaction[7] [7] The Anti-Money Laundering Act 1999, Section 20...
suite and to record statements of fact with regard to such transaction[8] [8] The Anti-Money Laundering Act 1999, Section 21...
suite. In the case where a customer refuses to prepare a record of statements of fact, it shall prepare such record on its own motion and notify the AMLO.

17 2) A Land Office shall report to the AMLO when it appears that an application is made for registration of a right and juristic act related to immovable property to which a financial institution is not a party and which is of any of the following descriptions[9] [9] The Anti-Money Laundering Act 1999, Section 15...
suite:
(1) requiring cash payment in a larger amount than 2,000,000 Baht;

18 (2) involving a greater value of immovable property than 5,000,000.00 Baht (3) being made in connection with a suspicious transaction.

19 3) A trader engaging in the business involving the operation of or the consultancy in a transaction related to the investment or mobilization of capital shall report to the AMLO in the case where there is a reasonable ground to believe that such transaction is associated with the property connected with the commission of an offence or is a suspicious transaction[10] [10] The Anti-Money Laundering Act 1999, Section 16...
suite.

3. Ombudsmen

20 Ombudsmen are independent organization by virtue of the Constitution which comprise of three members, who shall be appointed, by the King with the advice of the Senate, from the persons recognised and respected by the public, with knowledge and experience in the administration of the State affairs, enterprises or activities of common interest of the public and with apparent integrity[11] [11] Constitution of the Kingdom of Thailand, Section 196...
suite.

21 The Ombudsmen have the powers and duties as follows[12] [12] Constitution of the Kingdom of Thailand, Section 197...
suite:
1-† to consider and inquire into the complaint for fact-findings in the following cases :
(a) failure to perform in compliance with the law or performance beyond powers and duties as provided by the law of a Government official, an official or employee of a State agency, State enterprise or local government organisation;

22 (b) performance of or omission to perform duties of a Government official, an official or employee of a State agency, State enterprise or local government organisation, which unjustly causes injuries to the complainant or the public whether such act is lawful or not;

23 2- to prepare reports and submit opinions and suggestions to the House of Representative.

24 The direct duties of the Ombudsmen are not to involve with suppression of corruption. Their actual duties of the Ombudsmen are to inquire into facts and prepare opinion to be submitted to parliament. Their duties shall help improve better transparent administration in order to eliminate corruption in the country.

25 In the event that the Ombudsmen find that there is suspicion that corruption or malfeasance in office or criminal offense or discipline violation has been committed, the Ombudsmen shall report to the authorities concerned and supervisor in such office to take further legal action.

26 Upon the Ombudsmen’s report, the authorities or supervisors concerned shall initiate legal action against offenders and that they are required to report to the Ombudsmen every three months[13] [13] The Organic Law on Ombudsmen 1999, Section 32 ...
suite.

III. Measure against Corruption

1 . Conflict of Interest

27 Conflict of public interests and private interests is another channel leading to corruption. To refrain from this problem, the law provides measures against conflict of interest in many laws; that is

A The Minister’s Partnership and Shares Management Act 2000 (“MPSM Act”)

28 A Minister shall not be a partner or shareholder of any partnership or any company or retain his being a partner or shareholder of any partnership or any company except in the following cases[14] [14] The Minister’s Partnership and Shares Management Act 2000...
suite;

29 (1) In a limited liability Partnership, he can be a limited liability partner with holding share not more than 5 percents of the total registered capital of the said partnership (2) In a private company or a public company, he can hold share not more than 5 percents of the total sold share In case where the Minister intends to receive benefits from being a partner or shareholder or to hold the share more than the number as said above, he or she shall inform the president of NCCC. within 30 days as from date of appointment and shall transfer his or her shares to a juristic person which manages assets for benefit of other persons. Then, he or she shall inform the President of the NCCC. within 30 days from transfer[15] [15] The Minister’s Partnership and Shares Management Act 2000...
suite. The juristic person whom the minister shall transfer for management, no directors or persons assigned to manage shares thereof shall have interest with the minister, his spouse and his creditor or debtor. The minister shall be prohibited to transfer his shares to such persons otherwise.

30 The Minister shall not do any acts which, by nature, amounts to administration or management of shares or affair of such partnership or company[16] [16] The Minister’s Partnership and Shares Management Act 2000...
suite. If the minister violates the prohibition, imprisonment from 1 year to 10 years or fine from 100,000.00 to 1,000,000.00 Baht or both imprisonment and fine shall punish him[17] [17] The Minister’s Partnership and Shares Management Act 2000...
suite

B- The Organic Law on Counter Corruption 1999 (the Organic Law)

31 According to such law, a state official and his spouse shall be prohibited to engage in the following activities :
(1) Being state parties or interest persons to state contracts with state agencies whereby the state official of the state agency party is in the performance of duties to supervise, control, inspect and litigate against the other party.

32 (2) Being partner or shareholder of partnerships or companies, which are state parties to the contracts with state agency whereby the state official of the state agency party is in the performance of duties to supervise, control, inspect and litigate against the other party.

33 (3) Being concessionee or holder of right in public concession or being contractual party with state agencies under the monopoly contract or being partner or shareholder in partnerships or companies being granted concession in that respect.

34 (4) Having interest as director, counsel, agent, staff or employee in private businesses, which are under supervision, control, and inspection of the state agencies as the state official in charge thereof thus constituting conflict of interest. A state official means a person holding political position, state servant or local administration employee with permanent position and salary, employee or person of state enterprises and state agencies, non-political members of the local administration, competent official pursuant to law on locality administration, including director, state employee, state enterprise employee as well as any person in exercising of administration act[18] [18] The Organic Law on Counter Corruption 1999, Section 4...
suite.

35 If a state official violates the provision, he shall be punished by imprisonment not exceeding 3 years and fine not exceeding 60,000.00 Baht or both imprisonment and fine[19] [19] The Organic Law on Counter Corruption 1999, Section 122...
suite.

36 It is noted that the above-mentioned organic law is broaden applicable than the MPSM Act for the reason that the organic law governs all persons holding political positions and state officials including their spouses.

C- The Administrative Performance Act 1996 (“APA”)

37 Due to inapplicability of the organic law and MPSM Act to state official’s closed relatives and friends and in light of the fact that the patronage relationship in Thai society, a state official may exercise of their undue power in favor of his closed relatives and friends. The APA thus provides law provision prohibiting a state official to order, grant permission and approval, register or deliver any administration order in the following manners[20] [20] The Administrative Performance Act 1996, Section 13 ...
suite:

1. State official being interest party;
2. State official being spouse to a servicee;
3. State official being relative to a servicee;
4. State official being lawful representative to a servicee;
5. State official being creditor or debtor to a servicee.

38 The above prohibition shall apply mutatis mutadis to oppose against judges in office in any court.

2. No Bribery

39 According to the Organic Law on Counter Corruption 1999, a state official is prohibited to receive any property or benefit from other person, save for any property and benefit he is entitled to by the law or moral gift in the value of not exceeding 3,000 Baht. Any official who is in violation of above provision shall be punished by imprisonment not exceeding 3 years or fine not exceeding 60,000.00 Baht or both imprisonment and fine[21] [21] The Organic Law on Counter Corruption 1999, Section 122...
suite.

40 In my opinion, the prohibition as above pointed out shall not in fact be enforceable since bribery was committed and aware of by mutual offenders. It is difficult for investigation officer to prove such commitment.

3 . Declaration of Asset and liability

41 Under the Organic Law on Counter Corruption Act 1999, the law stipulates that a person holding the following position shall submit an account showing particulars of assets and liability of himself, his spouses and children aged under 20 years old to NCCC[22] [22] The Organic Law on Counter Corruption 1999, Section 32...
suite
a. Prime Minister
b. Ministers
c. Members of the House of Representatives
d. Senators
e. Other political officials according to the relevant laws
f. Bangkok Chief Governor, Bangkok Deputy Chief Governor, Members of Bangkok Council
g. Local Administrators and Members of Local Assembly

42 The account shall be submitted with the supporting documents evidencing the actual existence of assets and liabilities as well as a copy of the personal income tax return of the previous fiscal year. Such account shall be submitted 3 times[23] [23] The Organic Law on Counter Corruption 1999, Section 33...
suite; that is
i. within 30 days as from the date of taking office
ii. within 30 days as from the date of vacation
iii. within 30 days as from the date of the expiration of one year after vacation of office

43 If the said person does not summit intentionally the account within the said terms or intentionally submits false statements or conceal the fact that should be disclosed, he shall vacate office and be prohibited to hold any political position for 5 years as from the date of vacation of office[24] [24] The Organic Law on Counter Corruption 1999, Section 34...
suite. Further, he shall be inflicted by imprisonment for not exceeding 6 months or fine not exceeding 10,000 Baht or both imprisonment and fine[25] [25] The Organic law on Counter Corruption 1999, Section 119...
suite.

44 The NCCC. has a duty to inspect the change of assets and liabilities of the person, his spouse and children aged under 20 years old by comparing the assets and liabilities at the time of assuming position with the assets and liabilities after vacation of office. If it is found that the assets of said person, his spouse and children are unusually increased or their liabilities are unusually decreased, the law states that the president of NCCC. shall send the inspection report with relevant documents to the attorney general to institute an action in the Criminal Division for Person Holding Political Position of the Supreme Court so that the unusually increasing assets shall vast to the State[26] [26] The Organic Law on Counter Corruption 1999, Section 38...
suite.

45 Apart from the persons holding political positions, the law extends this duty to the following state officials[27] [27] The Organic Law on Counter Corruption 1999, Section 39...
suite; that is.

46 a. President of the Supreme Court, Vice President of the Supreme Court, Judge of the Supreme Court
b. President of the Constitutional Court, Judges of the Constitutional Court
c. President of the Supreme Administrative Court, Vice President of the Supreme Administrative Court
d. Attorney General, Deputy Attorney General
e. Election Commission
f. Ombudsman
g. National Audit Commission
h. Chief of the Military Court
i. High Ranking State Officer (i.e Director General, Secretariat of Ministry, Commander in Chief, Director of State Enterprise)

47 They are bound to summit the account showing the assets and liabilities of themselves, their spouses and children aged under 20 years old to the NCCC at time of assuming the post, every there years in the post and vacating of the post. If the officials do not summit intentionally the account or intentionally submits false statements or conceal the fact that should be disclosed, they shall vacate position and be prohibited to serve in the government for 5 years as from the date of vacation of office[28] [28] The Organic Law on Counter Corruption 1999, Section 34...
suite. Further, he shall be inflicted with imprisonment for not exceeding 6 months or fine not exceeding10,000 Baht or both imprisonment and fine[29] [29] The Organic Law on Counter Corruption 1999, Section 119...
suite.

48 The NCCC. shall inspect the assets of these persons in 4 cases :

1. where these persons submit the account;
2. where these persons are under the circumstance of unusual wealth;
3. where NCCC inquire cases where these person become unusual wealthy, commit malfeasance in office, malfeasance in judicial office and corruption;
4. where these persons vacate the post.

49 If NCCC has a resolution that the person are unusual wealth, the president of NCCC. shall send inspection report to the attorney general to seek for confiscation order[30] [30] The Organic Law on Counter Corruption 1999, Section 80...
suite.

4 . Removal from Position

50 A person holding the below position, who is under the circumstance of unusual wealthiness, indicative of commission of corruption, malfeasance in office, malfeasance in judicial office or an intentional exercise of power contrary to the provisions of the Constitution Law or Laws, may be removed from office by the Senate[31] [31] The Organic Law on Counter Corruption 1999, Section 58...
suite.

51 a. Prime Minister
b. Ministers
c. Members of the House of Representatives
d. Senators
e. President of the Supreme Court, Vice President of the Supreme Court
f. President of the Constitutional Court, Judges of the Constitutional Court
g. President of the Supreme Administrative Court, Vice President of the Supreme Administrative
h. Attorney General, Deputy Attorney General
i. Election Commission
j. Ombudsman
k. National Audit Commission
l. Chief of the Military Court
m. High Rank State Officer (Director General, Secretariat of Ministry, Commander in Chief Director of State Enterprise, etc.)

Procedure of Removal

52 Persons as said below, is entitled to file a complain to president of the Senate for removing the said person from his office; that is,
1. Members of the House of Representatives of not less than one fourth of the total number of the existing members of the House
2. Voter of not less than 50,000 persons
3. Senators of not less than one fourth of the total number of the existing member.

Accusation for removal are that

53 1. He is under the circumstance of unusual wealthiness 2. He is indicative of commission of corruption;

54 3. He is indicative of malfeasance in office;

55 4. He is indicative of malfeasance in judicial office 5. He is indicative of an intentional exercise of power contrary to the provisions of the Constitution Law or Laws After receiving the complain, the President of Senates shall have to refer the matter to the NCCC for investigation without delay.

56 Unusual wealthiness refers to unusual property gain or unusual raising property or unusual declining liabilities or undue gain deriving from malfeasance in office If the NCCC. finds and makes resolution that the accusation has a prima facie evidence, it shall do as below 1. send its resolution and other relevant document to the President of Senates for removal.

57 2. send all report and relevant document to the Attorney General to institute criminal action against him.

58 After the NCCC. makes such resolution, the accused shall not perform his duty until the Senates make resolution on his accusation[32] [32] The Constitutional Law, Section 305 The Organic law on Counter...
suite. A resolution for removal of any person from office shall be passed by secret votes of not less than threefifths of the total number of the existing members of the Senate[33] [33] The Constitutional Law, Section 307 ...
suite. After the Senates rule on removal, the person shall be deprived of the right to hold any political position or to serve in the government service for five year from the date of the resolution[34] [34] The Constitutional Law, Section 307 ...
suite.

5. Criminal Action against persons holding Political Position

59 The NCCC. is the sole organization to have the power to inquire and rule out offence arising out of malfeasance in office and corruption committed by prime minister, ministers, member of representatives, senates or other political officials. The NCCC. shall initiate inquiry in two cases; namely 1. any injured person file a complain with the NCCC. alleging that Prime Minister, ministers, member of representatives, senates or other political officials commit malfeasance in office and corruption.

60 2. The NCCC. is request by the president of the senate to initiate inquiry of the fact in the event of removal of person holding political position from office as mentioned above.

61 3. After the NCCC. completes its inquiry and verdict the president of the NCCC. shall then refer the case to the attorney general for legal action in the Criminal Division for Person Holding Political Position of the Supreme Court.

6. Inquiry against state official performance

62 The NCCC. shall have the power to inquire into the fact, if allegation of malfeasance in office or corruption is deliver to the NCCC. or the NCCC. has suspicious that submitted malfeasance in office or corruption has been committed. The NCCC. has to take further the following actions 1. report to the accused’s supervisor for disciplinary punishment and 2. refer the matter to a state attorney for legal action.

63 In the event that the accused’s supervisor ignores, the NCCC.’s verdict compliance in terms of disciplinary punishment, the supervisor shall be deemed in violation of disciplinary or law provision to ensure efficient and actual punishment.

7. Property Confiscation

64 In case where allegation of unusual wealthiness against persons holding political position and state officials or the NCCC. has suspicious that sate officials holding non-political position become unusual wealthinesss, the NCCC. shall have the power to initiate inquiry. If after NCCC’s verdict is given out that such accused is of unusual wealthiness[35] [35] Unusual wealthiness refers to unusual property gain or unusual...
suite, the NCCC. shall refer the matter to attorney general for such office to seek for the court order of confiscation of offender’assets.

IV. Conclusion and Suggestion

65 In light of the legal devices and measures as discussed above, the malfeasance in office and corruption scandals in Thai society has still deja vu in today’s press and mass media. It is presumably concluded that the legal devices and measures in prevention and suppression of malfeasance in office and corruption are inefficient in reality to redress the great adverse impact of such corruption problems. The reporter would like to suggest about other supplementary measures to solve effectively such problems as follow :

1. Government should promote public of conscience and social value of integrity as a whole to eliminate corruption problem from grass root level;
2. 1. Government should urge to build accountability and transparency within and outside organization with a view to preventing from possibility of corruption;
3. 2. Government should promote and open for public participation. People who are in contact with state agencies should refrain from bribery but should rather act as watchdog of possibility of corruption in whatever means;
4. 3. The declaration of assets and liabilities should be urged to extend to all person holding chief position in every state agencies other than those persons holding political position and person holding high ranking position as required by the present laws.

Notes

[ *] State attorney to the Office of the Attorney General, the Kingdom of Thailand.

[ 1] Available at WWW.undcp.org/corruption.html

[ 2] Constitution of the Kingdom of Thailand, Section 297

[ 3] Constitution of the Kingdom of Thailand, Section 301, The Organic Law on Counter Corruption 1999, Section 19

[ 4] The Anti-Money Laundering Act 1999, Section 35,36,48

[ 5] The Anti-Money Laundering Act 1999, Section 13.

[ 6] Suspicious transaction refers to a transaction of a differently complicated nature from similar transaction ordinarily made, transaction lacking economic feasibility, etc.

[ 7] The Anti-Money Laundering Act 1999, Section 20

[ 8] The Anti-Money Laundering Act 1999, Section 21

[ 9] The Anti-Money Laundering Act 1999, Section 15

[ 10] The Anti-Money Laundering Act 1999, Section 16

[ 11] Constitution of the Kingdom of Thailand, Section 196

[ 12] Constitution of the Kingdom of Thailand, Section 197

[ 13] The Organic Law on Ombudsmen 1999, Section 32

[ 14] The Minister’s Partnership and Shares Management Act 2000 Section 4

[ 15] The Minister’s Partnership and Shares Management Act 2000 Section 5

[ 16] The Minister’s Partnership and Shares Management Act 2000 Section 11

[ 17] The Minister’s Partnership and Shares Management Act 2000 Section 17

[ 18] The Organic Law on Counter Corruption 1999, Section 4

[ 19] The Organic Law on Counter Corruption 1999, Section 122

[ 20] The Administrative Performance Act 1996, Section 13

[ 21] The Organic Law on Counter Corruption 1999, Section 122

[ 22] The Organic Law on Counter Corruption 1999, Section 32

[ 23] The Organic Law on Counter Corruption 1999, Section 33

[ 24] The Organic Law on Counter Corruption 1999, Section 34

[ 25] The Organic law on Counter Corruption 1999, Section 119

[ 26] The Organic Law on Counter Corruption 1999, Section 38

[ 27] The Organic Law on Counter Corruption 1999, Section 39

[ 28] The Organic Law on Counter Corruption 1999, Section 34

[ 29] The Organic Law on Counter Corruption 1999, Section 119

[ 30] The Organic Law on Counter Corruption 1999, Section 80

[ 31] The Organic Law on Counter Corruption 1999, Section 58

[ 32] The Constitutional Law, Section 305 The Organic law on Counter Corruption 1999 Section 65

[ 33] The Constitutional Law, Section 307

[ 34] The Constitutional Law, Section 307

[ 35] Unusual wealthiness refers to unusual property gain or unusual raising property or unusual declining liabilities or undue gain deriving from malfeasance in office.

PLAN DE L'ARTICLE

• I. Introduction
• II . Organizations in Supression of Corruption in Thailand
  • 1. National Counter Corruption Commission (“NCCC.”)
  • 2. Anti-Money Laundering Office (“AMLO”)
  • 3. Ombudsmen
• III. Measure against Corruption
  • 1 . Conflict of Interest
  • 2. No Bribery
  • 3 . Declaration of Asset and liability
  • 4 . Removal from Position
  • 5. Criminal Action against persons holding Political Position
  • 6. Inquiry against state official performance
  • 7. Property Confiscation
• IV. Conclusion and Suggestion

Sakulyouth Horpibulsuk « Anti-corruption in thailand », Revue internationale de droit pénal 1/2003 (Vol. 74), p. 543-555.
URL : www.cairn.info/revue-internationale-de-droit-penal-2003-1-page-543.htm.
DOI : 10.3917/ridp.741.0543.