When Should Government Officials Be Criminally Liable for Failure to Prevent Corruption? Reflections on Thailand, and Beyond

Three weeks ago, Thailand’s National Anti-Corruption Commission (NACC) recommended charging the sitting Prime Minister, Yingluck Shinawatra, with violating Section 157 of the Thai Criminal Code, one of Thailand’s key anticorruption laws. The corruption allegations concerned malfeasance in the Thai government’s controversial rice-purchasing program. There is much to be said about the NACC’s action and the underlying allegations, as well as how this will play out in the roiling cauldron of contemporary Thai politics. But perhaps the most striking thing about the charges, with the greatest potential significance outside of Thailand, is that the NACC did not allege that Prime Minister Yingluck herself committed any corrupt act, or even that she oversaw or directed or approved of any corrupt act. Rather, the NACC’s criminal complaint alleges that Prime Minister Yingluck knew about the alleged corruption in the rice-buying program and failed to stop it. This is possible because Section 157 applies to any official who “wrongfully exercises or does not exercise any of his functions to the injury of any person” (emphasis added). The NACC seems to read the prohibition on wrongful failure to exercise official functions quite broadly, so that it extends not only to an official who corruptly fails to take action (such as a health inspector or customs officer who looks the other way in exchange for a bribe), but also to an official who fails to take action to prevent corruption in the programs that official supervises.

That theory of criminal liability, applied in this context, is bold, and perhaps unprecedented. Of course, in private organizations, many legal systems may impose civil liability on corporate officers and directors who knew (or should have known) about corrupt activities by the corporation and failed to take appropriate remedial measures. But I can’t think of another instance in which an anticorruption enforcement agency has brought criminal charges against a senior government official (let alone a sitting head of government) for that official’s failure to stop corruption in a government program.

So what should we think about this? Is the expansive theory of liability under Section 157—as interpreted by the NACC—something that other countries should emulate? The short answer is that I’m not sure, but I have a few preliminary thoughts.

First, it’s worth noting that there must be some cases in which failure to act to stop corruption is itself corrupt. For example, an official who knows about, and fails to prevent, specific corrupt acts by her subordinates, may be fairly deemed to have approved of those acts–and perhaps (depending on the applicable law) might be deemed part of a criminal conspiracy to commit those acts. So the idea that failure to act to prevent corruption can sometimes give rise to criminal liability is not, by itself, terribly controversial. And it might be possible to read the NACC’s charges against PM Yingluck as endorsing this narrower theory of liability. But at least on their face, the NACC charges seem more expansive. They do not allege that the PM knew about specific instances of corruption by specific subordinates. Rather, the NACC alleges that the PM was warned repeatedly, by the NACC itself and the Thai Auditor-General, about the potential for corruption or about evidence of accounting irregularities or general reports of widespread corruption. So, I think it’s fair to read the NACC charges not as a narrow allegation that the PM was complicit in a specific corruption scheme, but rather as a broad allegation that she neglected her duty to respond appropriately to repeated warnings of corruption in the program.

Assuming that’s the right interpretation of the NACC charges, is this a good idea? A “dereliction of duty” theory of liability does have the appealing feature it requires government officials to take seriously evidence of widespread or systemic corruption. After all, although some governments are true kleptocracies, in many cases senior government officials do not themselves loot the public treasury, but rather turn a blind eye to, or tacitly condone, corruption by their underlings and supporters (perhaps in exchange for continued political support). This gives the leaders “plausible deniability”: the leaders can benefit from the political support cultivated by a corrupt system, but when any individual acts of corruption are uncovered, the leaders can credibly claim not to have been directly involved, or even to have had specific knowledge. The NACC’s expansive theory of liability may undercut that strategy. More generally, the NACC’s theory of liability gives senior officials much stronger incentives to take seriously, and respond to, reports of corruption issued by entities like auditors general, ombudsman offices, and the like—even when those entities do not have the power directly to compel government action.

That’s all to the good. But however appealing the NACC’s approach may seem to committed anticorruption advocates, it raises a number of serious questions and concerns. Perhaps foremost among these is this: What, exactly, does an official have to do in response to reports of corruption in order to avoid liability under something like the NACC’s “dereliction of duty” theory?

Suppose, for example, that PM Yingluck were to defend herself by saying something like this: “I acknowledge that there was corruption in the rice-buying program. There’s corruption in lots of government programs. Whenever I received credible information about specific, identifiable acts of corruption, my government took remedial action. But we couldn’t prevent all of it. Nonetheless, I determined that the program’s benefits outweighed the costs, including the costs associated with corruption. What do you want me to do, shut down every government program whenever there’s evidence of serious corruption within that program? That’s absurd.” Call this the “Bill Gates Defense” – corruption is an implicit (and unwanted) tax on aid programs, but one that we should tolerate if the program is beneficial on net.

I suppose there are two things prosecutors could say in response: (1) you didn’t really take sufficient action to prevent corruption within the program; (2) if corruption is sufficiently widespread, and you haven’t been able to implement effective preventive or remedial measures, you do in fact have to shut the program down. Both responses are problematic, for similar reasons: prosecutors, and courts, are in the uncomfortable position of doing a cost-benefit analysis of the government’s anticorruption policies. And there are further complications: Should the prosecution need to identify some specific, concrete act (or acts) that the government official should have taken, but didn’t? (The NACC’s charging document does not seem to contain anything like that, though perhaps more will come later). Or is it enough to charge generally that the government official “failed to exercise” her supervisory functions to address corruption, without identifying any specific actions?

Now, despite these questions, maybe there are some easy, extreme cases, in which the government really does nothing at all to deal with corruption. It’s possible that the current Thai case is one of those extreme cases (I don’t know). But in most cases, government officials will learn to at least make a show of trying to deal with corruption allegations, even if their efforts are halfhearted at best. How comfortable are we with prosecutors and courts saying not just that government officials’ anticorruption efforts were inadequate, but that they were so inadequate that those officials should be removed from office, fined, and sent to prison?

And what if we’re worried that anticorruption enforcement may itself become politicized? Particularly in countries where corruption is widespread and deeply rooted, virtually every government official may receive credible reports of substantial corruption in the programs she oversees, and—given limited budgets and other demands—no official is likely to take all possible preventive and remedial measures. That means that any official might be a plausible target for prosecution under something like the NACC’s expansive “dereliction of duty” theory of liability. The subjective nature of judgments regarding the action that responsible officials were legally obligated to take in these settings gives the anticorruption enforcement agencies tremendous power, as they would not need to find credible evidence of actual corruption by the targeted official herself, but rather a failure on that official’s part to take sufficient action to deal with corruption by others. That significantly increases risks of politicized anticorruption enforcement, akin to the risks that Anna discussed in last week’s post about Russia, and that the current Thai government’s supporters have leveled (fairly or unfairly) at the NACC.

On Thursday, I’ll explore in greater depth how the NACC’s charges against PM Yingluck may influence the ongoing political turmoil in Thailand.

12 thoughts on “When Should Government Officials Be Criminally Liable for Failure to Prevent Corruption? Reflections on Thailand, and Beyond

  1. This is a fascinating post – and I think it does a great job of laying out the positives and negatives of dereliction of duty liability. My gut reaction after reading is that the appropriateness of this kind of liability will vary significantly from country to country, but that in general it may do more harm than good.

    Here’s my thinking: Say we think that the primary benefit of dereliction of duty liability is its potential to force officials in cultures where corruption is endemic to take corruption allegations seriously, instead of dismissing them as a cost of doing business. The problem I see is that the countries where corruption is endemic – and where expansive liability is thus most useful – are also probably the countries where corruption investigations are most likely to be used as political weapons. (I don’t have any proof here, but it seems logical that weak rule-of-law values, which are often drivers of corruption, would also lead to politicized enforcement of anticorruption statutes.) So is increased politicization of anticorruption enforcement at the elite level worth the possibility of greater incentives down the government food chain for enforcement?

    I think there are multiple stories you could tell here, and I’m not sure there’s a universally right answer, but at least in Thailand it seems like the negatives may outweigh the positives. Thailand has a history of politicized anti-corruption enforcement, and it’s impossible to consider the current allegations against Yingluck Shinawatra outside the context of the ongoing political instability that has threatened her tenure as PM. I’m no Thailand expert, but I wonder whether, against this backdrop, a law like 157 is actually worth the destabilizing influence it can have on the political situation.

    Putting aside countries where corruption and politicized enforcement are endemic, maybe dereliction of duty liability makes sense as a sort of prophylactic measure in countries that already have strong rule-of-law values. I think that’s a tenable argument, but I would only add that those countries are also probably those most likely to have vast administrative states that are difficult for officials to effectively oversee. In other words, I suspect that the countries where politicized enforcement is least likely to occur are also probably those where it seems least fair to hold officials liable for endemic corruption happening within the agencies they control.

    • Sam,

      Your analysis seems plausible to me. The question, though, is whether there might be a non-trivial set of countries where corruption is widespread (including at very high levels), but nonetheless the anticorruption enforcement apparatus (including the anticorruption agency if there is one, the prosecutors, the judiciary, etc.) is nonetheless sufficiently independent and insulated from political control. I’m sympathetic to your view that this combination is less likely than the alternatives, but there may be some examples where it holds. Hong Kong in the 1970s might be one; contemporary Indonesia might be another. Many U.S. state governments might fit into this category as well. (Of course, none of these jurisdictions, to the best of my knowledge, have a “dereliction of duty” theory of official corruption.) Thailand is a hard case: anticorruption enforcement in Thailand has a history both of politicization (in some cases) and of independence (in others). That’s one of the things that makes the Thai case so fascinating.

  2. It like standing on the street and watching a person being raped by another. There is an implied duty to assist, bring to notice or seek help. This is an omission is a commission. In Yingluck’s case , a public servant, there is a specific statute that imposes liability and therefore a plain reading would readily ( if I was the Attorney General) move that charges should be preferred for her to rebut. It is the law. For ASEAN countries, it is a good law -I think. In some countries there is the Government Proceedings Act which disallows prosecuting civil servants. In the absence, we can take it -that there is a statutory duty to act.

  3. the problem in Thailand is, the charge on Yingluck is a “Judicial Coup” because as always, the charge of not safe-guarding loss, has never been used on any Thai politician before, but it is being used on Yingluck, for the first time in Thai history.

  4. Pingback: Malfeasance, dereliction of duty, and the problems of selective enforcement | Asian Correspondent

  5. I find the text very clear and logical, and thus look forward to the second part. One key problem in the current political situation is that those operating within a strong moralistic political culture have gained important state positions (Vicha Mahakhun etc. on the NCCC, three judges on the CC, who were important drafters of the 2007 Constitution), while the same circles have also tried other ways (the PDRC under Suthep). Against this background, strictly legal considerations in deciding cases (be it CC or NCCC) are not that important, and even extremely doubtful rulings are accepted in those circles since they achieve their political goals of identifying and punishing the “guilty”.

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  7. You were right when you said: “I think it’s fair to read the NACC charges not as a narrow allegation that the PM was complicit in a specific corruption scheme, but rather as a broad allegation that she neglected her duty to respond appropriately to repeated warnings of corruption in the program.” I would add that the warnings themselves were broad, vague and seen by many as partisan in nature, as in there is corruption in the rice pledging program, but not much more than this. Since there is almost certainly some corruption somewhere in virtually all major government spending plans (and not just Thai government spending plans), adopting a rule that allows impeachment for corruption on the basis of these sorts of claims makes it impossible to govern.

    Moreover, if a politician can be impeached on these sorts of claims, the concept of corruption becomes so broad that it loses or at least starts to lose legitimacy. And this is a serious problem in Thailand, where it is already difficult enough to pursue straight forward corruption claims. I don’t want to get into who is right or wrong in this political dispute, but you presumably know that that Yingluk’s predecessors were brought down on some questionable corruption or corrruption-related charges. For example, one former PM was removed from office for having a conflict of interest because he continued to appear on a cooking show for which he was paid a pittance. This PM thought of himself as the “galloping gourmet” of Thailand, and he was obviously not appearing on this show for financial gain, but as a relaxing diversion from the pressures of trying to govern Thailand. A recent high court decision held that having a fully elected Senate was inconsistent the a democratic form of government. There is certainly more than a grain of truth in Michael H. Nelson’s post and I will leave that issue at that.

    The consequence of this history is that those in government now and their supporters are constantly claiming “double standards”. They win elections and assume power only to be removed on what they perceive to be rather dubious claims. This is not good for Thailand’s political stability and it undermines the ability to puruse what I believe everyone would agree constitutes a legitimate corruption claims.

    There is much that can be said on this topic (and much that cannot be said – which is another problem here), but one of the more serious problems I see is the paucity of information on the charges that are made and the rationale for decisions made in these sorts of cases. To say the decisions are thin is being generous. Very little factual information is provided and the rationale for many of the more controversial decisions is simply a restatement of the conclusion.

    One measure that should be adopted in these controversial cases is to issue detailed decisions that set out the facts and the rationale on the basis of those facts for the decisions made. You won’t see here what you will see in a US court decision. You will see very little. And this, of course, invites further criticism of the bodies making these controversial decisions. But if the decisions are detailed and transparent, we can then at least have an informed discussion about those decisions (assuming the contempt of court sanctions for questioning court decisions is removed and the criminal defamation laws (used liberally here) are eliminated or at least curtailed) and what does and does not constitute corruption in Thailand. As matters stand, we here in Thailand have about as much information about the corruption charges leveled against Yingluk as you do. And I think you would agree that we need more than that.

  8. Thanks Matthew for this very insightful entry and for the blog itself (I discovered it a few weeks ago and I am not a follower). I am from Spain, a country where, as I am sure you know, political corruption seems to be pandemic. I found this entry very timely within our political context. It is very common among Spanish politicians caught in the middle of corruption scandals to say they “are innocents because they were not aware of the corrupt practices going on”. The latest example is the case of Magdalena Álvarez, the current vice president of the European Investment Bank (EIB) and former public works minister, who has been ordered by a Seville judge on Wednesday to post a €29,568,129 civil liability bond as part of a criminal investigation into purported fraud committed through a regional government fund in Andalusia. You can find a summary of the story here:
    Magdalena Alvarez, does not deny the existence of this fraud but she claims (i) she is innocent because she did not know about it (even if the fraud took place in the department she was in charge of) and (ii) she is victim of a political witch chase (she claims the judge is close to the conservative political party). This is the kind of excuse that Spanish politicians normally do when they are caught in the middle of this scandals. They do not seem to assume any “Dereliction of Duty Liability”… Even the Judges are reluctant to incriminate politicians based only on this liability… I would like to know what you think about it. Do you think that in countries like mine, where corruption is seen as the main country problem by the citizens (according to TI index, corruption perception is growing fast) Dereliction of Duty Liability theory should be apply to politicians as an exemplary measure?… Also, in relation to the specific case of Magdalena Alvarez: do you think the judge went too far? do you think she should resigned from her position in the EIB?…

    • Thanks for this fascinating comment. I don’t know enough about the specific case you mention to comment directly on it (though thanks to your comment, I plan to read up on this situation). I do think your observation provides a nice counterpoint to what several of the other commenters have had to say about the Thai situation (and in particular the risks of politicized enforcement under a very broad/vague standard).

      As your post comment points out, even though there are real risks to broad “dereliction of duty” theories of corruption liability, this sort of broad theory does address the very real problem of politicians and senior officials maintaining “plausible deniability” — and currying support among their followers by tacitly permitting them to engage in corrupt activities while looking the other way.

      The challenge, it seems to me, is to figure out how to appropriately cabin this sort of liability. As Douglas and Michael’s comments above accurately point out, there’s likely to be corruption in any big government program, which could lead to potentially sweeping liability for the officials in charge of those programs, and potentially dangerous powers in the hands of the law enforcement agents who decide whether/whom to go after.

      Clearly there are extreme cases. If prosecutors can show that an official had specific knowledge of corrupt activity, so that inaction could be construed (beyond a reasonable doubt) as indicating that the official was a co-conspirator, then I think most legal systems would rightly impose criminal liability. Likewise, I doubt many people would endorse a system that would hold government officials criminally liable simply because there was corruption in the programs they oversee. The hard cases are the intermediate cases — whether, or when, an official can be criminally liable for negligently or recklessly failing to prevent corruption, and what the prosecution should need to show in order to secure a conviction under such a theory.

  9. Turn a blind eye and you are guilty seems to be the idea. A lot of corruption is known and ignored but when such a law exists that makes the blind eye a criminal offence then one would think corruption would be known and reported not ignored.

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