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.