Bright Line Rules: A Way to Reduce Politicized Enforcement?

Yesterday Matthew discussed the wisdom of the Thai anticorruption agency’s recommendation that Thai Prime Minister Yingluck Shinawatra be charged with failing to prevent corruptionThe case would be brought under Article 157 of the Thai Criminal Code, a broadly worded law providing that a public official commits a crime if someone is injured as a result of the official’s failure to exercise his or her duties.

Statutes with such a broad sweep are a standard response to corruption in many countries, enacted out of a fear that a clever criminal can find a way around tightly drawn provisions of law.  Indeed, countries as diverse as Tanzania, South Korea, Indonesia, and Vietnam have all enacted broadly drawn laws that criminalize the “abuse of public office for private gain.”  However, such laws vest enormous discretion in the hands of law enforcement.  A critical–and often overlooked issue–is whether law enforcers should enjoy such discretion.

On the positive side, laws setting forth general standards ensure that criminal activity does not escape punishment.  Take the all too common example of a public official showered with gifts, not as a specific quid pro quo, but to curry favor.   As the American Supreme Court has held, U.S. officials who make decisions that favor parties who have given the officials a a stream of gifts are not guilty of bribery unless the prosecution can link a particular favor to a specific gift.   A law making abuse of office for private gain a crime obviates the need to prove the quid of a gift was returned by the quo of a favor.

On the other hand, a broadly worded standard leaves much room for abusive enforcement, especially when law enforcement staff is poorly trained or not technically competent.  An even greater danger than incompetent enforcement is politicization. When police, prosecutors, courts, and other enforcement agencies are not insulated from short-term political considerations, the pressure to conjure up a “creative” interpretation of the law to nail a political opponent can be overwhelming–as Anna’s post last week about Russia nicely illustrated.

Fortunately, the choice is not between letting some percentage of wrongdoers slip through the net or risking abusive enforcement.  The solution is to replace broad, general standards with detailed, “bright-line” rules that state precisely what conduct is illegal. Consider again the individual or firm seeking to curry favor with an official by showering him or her with gifts.  A law banning receipts of gifts from a single source of more than, say, $500 per year along with one requiring disclosure of all gifts will fill the gap created by the need to prove quid pro quo bribery.  If a would-be corrupter gives an official more than $500 in gifts, and the official fails to report them, the predicate is laid for a straightforward, easy-to-understand prosecution for the violation of the limit and the failure to disclose.

The advantages of bright-line rules over open-ended standards are several.  By taking discretion away from enforcement agencies, they reduce the risk that enforcement decisions will be politicized (or perceived as politicized).  Because they are easy to understand – e.g. you must report all gifts received – they are a more effective deterrent than an injunction not to abuse one’s office.  Finally, they can facilitate citizen oversight in countries with weak enforcement agencies or those susceptible to political pressures.  Citizens may not be able to determine if an official has abused her office; they can much more easily determine if an official is being showered with gifts, particularly if the country has robust and independent investigative journalists.

To bring the discussion back to Thailand, a debate has been underway for many years on Article 157 that echoes these considerations.  As recounted in a Bangkok Post article now behind a pay wall, Medhi Krongkaew, a now former commissioner of the Thai anticorruption agency, complained in op-eds in the Thai press that as written the law demands that the agency tackle two very different forms of conduct — corruption and malfeasance – and that the latter is far better suited for disciplinary remedies rather than criminal prosecution.  Kanit Nanakorn, a former attorney-general and later dean of Dhurakij Pundit University’s Faculty of Law, urged that Article 157 be amended to specifically identify what is prohibited conduct.  In contrast, Sarawut Benjakul, a senior court official, argued that the courts have shown they are capable of reigning in overly “creative” interpretations of the law,

A vigorous, thoughtful debate on rule versus standards — like that in Thailand — is long overdue  — among those who advise lawmakers on anticorruption policy and those called on to enforce the result of lawmakers’ deliberations.

13 thoughts on “Bright Line Rules: A Way to Reduce Politicized Enforcement?

  1. Your reference to investigative journalism raises another interesting (and related, I think) question: is criminal law the ideal way to combat corruption? Or, even if it’s the best way, should it be the exclusive way? I’m thinking of a state creating a private right of action, as long as it was based on violating a rule (say your $500 limit), it might enjoy increased perceived legitimacy because it would be apolitical, in the sense that plaintiffs would either be watchdog-type groups or monetarily-motivated (e.g. if there was a damages multiplier).

  2. Thank you for the thoughtful and interesting post, Rick. I agree that there are several advantages to clearly defined rules. In addition to those you mentioned, I can imagine that investors and corporations would appreciate more transparent rules.

    I wonder, though, whether a state could have a diverse body of laws governing corruption, some of which were rules and some of which were standards. Corporate and individual practices evolve, and standards are more adaptable than rules. Coupling standards with rigorous evidentiary standards would allow prosecutors to catch conduct that rules might let slip through while affording protection to the people accused.

    • Just to build on David’s comment, one problem with bright-line rules is that they tend to be over- or under-inclusive.

      If the bright-line prohibitions were drawn narrowly, then it might be possible for corrupt officials to exploit gaps or loopholes while avoiding prosecution.

      On the other hand, if the bright-line prohibitions are drawn very broadly — if they take the form of broad prophylactic rules, as your post suggests — then we may have two problems:

      (1) We may sweep up a lot of innocent, socially desirable conduct (or at least conduct that isn’t worth a criminal prosecution) in the scope of the rule;
      (2) We may rely on prosecutorial discretion to mitigate that first problem, but if we do, then we’re right back to the problem of potentially biased or politicized enforcement that you were hoping bright-line rules would help solve.

      • Bright lines are not costless. My argument is that where enforcement agencies are technically weak or especially politicized, the costs of bright line rules are less than the costs that result when weak or politicized agencies have wide discretion to enforce the law. A clever criminal may find a way to steal money without running afoul of the bright line rules prohibiting theft, embezzlement, and the like, but in many instances that will be far less costly than allowing an agency subject to political pressure to charge individuals under some vague “abuse of position” statute.

        As both Matthew and David suggest, even the best drafter probably can’t write an anticorruption law that doesn’t have at least some standards, what H.L.A. Hart termed “open textured” provisions. That is why I recommend that enforcement agencies establish an advance ruling procedure. If an individual is uncertain whether a course of conduct would amount to “abuse of position,” say, he or she can ask for an opinion. If the agency opines that the conduct is lawful, the requestor cannot later be prosecuted.

        The tax laws of many countries contain advance ruling provisions, and in the U.S. the Office of Government Ethics and the Federal Election Commission each have procedures for obtaining advisory opinions. With both the OGE and the FEC, the requestor must fully disclose the proposed action for the opinion to bind the agency, and the Department of Justice reserves the right, even in the face of an approving opinion, to bring a criminal action though as a practical matter that would seem of little consequence.

        An advance ruling system has its own drawbacks, I know, (Givati, “Resolving Uncertainty: the Unfulfilled Promise of Advanced Tax Rulings,” 29 Va. Tax Rev., 137 (2009)). But particularly when enforcement agencies are in the early stages of creating a new, or more effective, legal regime, as many recently established anticorruption authorities are, I think it an appealing way to deal with the open textured or standards issue.

  3. Isn’t the charge of the NACC based on the constitution, rather than on the Criminal Code? After all, this is about removing Yingluck from office. Criminal proceedings, if any, will come only later. The relevant article is

    Section 270. A person holding a position of Prime
    Minister, Minister, member of the House of Representatives,
    senator, the President of the Supreme Court of Justice, the
    President of the Constitutional Court, the President of the Supreme
    Administrative Court or Prosecutor General, who is under the
    circumstance of unusual wealthiness, or purports to commit
    corruption, malfeasance in office, malfeasance in judicial office or
    an intentional exercise of power contrary to the provisions of the
    Constitution or law, or gravely violates or fails to observe ethical
    standards may be removed from office by the Senate.

    • I’m a bit out of my depth here, because I’m no expert in Thai law, but I think the constitutional provision you quote (the impeachment provision) doesn’t come into play unless the official is convicted of one of the listed offenses. The news reports definitely indicate that the NACC’s charges against PM Yingluck allege violations of Section 157 of the Thai Criminal Code. I think that the way this works is that if the PM is convicted of violating Section 157 of the Thai Criminal Code, she could/would then be impeached pursuant to Section 270 of the Thai Constitution.

      Do we have any experts in Thai law out there who can clarify?

      • The case against Yingluck is about removing her from office. There will be no prior “conviction” in a criminal court. It only needs the opinion of the NACC that the case has prima facie value. The case will then be sent to the Senate for starting impeachment procedures. From the time the NACC sends the report to the Senate, Yingluck will have to cease working. The NACC also has to send its report to the Prosecutor General for preparing prosecution at the Supreme Court’s Section for Holders of Political Positions.

        Section 272. Upon receipt of the request under section
        271, the President of the Senate shall refer the matter to the National
        Counter Corruption Commission for conducting and completing
        ~ 157 ~
        an investigation without delay.
        When the investigation is complete, the National Counter
        Corruption Commission shall prepare a report thereon for
        submission to the Senate. The said report shall clearly state
        whether, and to what extent, the accusation put in the request has
        a prima facie case and is supported by convincing evidence and
        shall state the reasons therefor.
        In the case where the National Counter Corruption
        Commission is of the opinion that the accusation put in the request
        is an important matter, the National Counter Corruption
        Commission may make a separate report specifically on the said
        accusation and refer it to the President of the Senate in accordance
        with paragraph one for consideration in advance.
        If the National Counter Corruption Commission passes
        a resolution, with votes of not less than one-half of the total number
        of existing members, that the accusation has a prima facie case,
        the holder of the position against whom the accusation has been
        made shall not, as from the date of such resolution, perform his or
        her duties until the Senate has passed its resolution. The President
        of the National Counter Corruption Commission shall submit the
        report, existing documents and its opinion to the President of the
        Senate for proceeding in accordance with section 273 and to the
        Prosecutor General for further instituting prosecution in the
        Supreme Court of Justice’s Criminal Division for Persons Holding
        Political Positions. If the National Counter Corruption Commission
        is of the opinion that the accusation has no prima facie case, such
        accusation shall lapse.
        In the case where the Prosecutor General is of the opinion
        that the report, documents and opinion submitted by the National
        Counter Corruption Commission under paragraph four are not so
        complete as to institute prosecution, the Prosecutor General shall
        notify the National Counter Corruption Commission for further
        ~ 158 ~
        proceedings and, for this purpose, the incomplete items shall be
        specified on the same occasion. In such case, the National Counter
        Corruption Commission and the Prosecutor General shall appoint
        a working committee, consisting of their representatives in an equal
        number, for collecting complete evidence and submit it to the
        Prosecutor General for further prosecution. In the case where the
        working committee is unable to reach a decision as to the
        prosecution, the National Counter Corruption Commission shall
        have the power to prosecute by itself or appoint a lawyer to
        prosecute on its behalf.

        • Your helpful clarification makes me wonder whether some of the concerns I expressed in my last post might not be even more salient than I thought they were. If I understand correctly, in order to initiate impeachment proceedings against the PM (or other senior official), the NACC need only conclude that there’s a prima facie case that the official failed to take action to prevent corruption (within the meaning of Section 157 of the criminal code). If 157 is interpreted expansively, then that seems like it might be a low bar to meet.

          On the other hand, the fact that in an impeachment proceeding the check is political (the Senate), rather than judicial, might perhaps mitigate some of that concern? Not sure – need to think more about this.

  4. I have a quick question: are bright line rules useful when the amount of money lost due to corruption depends on how one carries out the accounting process. For example, if a government undersells telecom licenses at an auction (as a result of corruption), one auditor might conclude that the exchequer lost, say, $100 million, while the other states that the exchequer lost $137 million. If the bright-line sits at $120 million, what should we do?

    • I doubt any competent drafter would make underselling by a specified amount a crime; it would invite underselling by one cent less. More likely would be a law making underselling by more than a de minimis amount a violation. The art of law drafting is to foresee such problems and write around them.

  5. You are right about the “low bar” problem. Indeed, the problem is even serious and more complicated than some of the initial posts suggest. To put this in context, I think some background on the nature on the body making impeachment decisions (such as the NACC ability to find a prima facie case) is needed.

    In an effort to minimize the discussion of politics and personalities (although some discussion is needed), I think it is best to start by describing how the body that appoints the NACC (the Thai Senate) is formed. Understanding this, helps understand why claims of bias are taken quite seriously. A bit of history about some of the players in this structure also helps.

    The Thai Senate has exclusive power to appoint members of the NACC. This may not seem so extraordinary until you understand how members of the Thai Senate are selected. The Thai Senate consists of 150 senators. Of the 150 senators, 74 senators are appointed and 76 are elected (one for each province and one for Bangkok, which is not technically a province). This means that the appointed senators only need two elected senators to obtain a majority. And since the political strife in Thailand is largely along geographical lines, this essentially guarantees that if the appointed Senators tend to vote along the same lines in favor of a particular party or group, they can easily get two of the 76 elected Senators to join them. There are provinces that pretty much consistently vote for Thaksin aligned parties and provinces that pretty much consistently vote for the Democrats (who boycotted elections). The Asia Foundation has an excellent report and map demonstrating this here: http://ijbssnet.com/journals/Vol_3_No_19_October_2012/8.pdf. This is relevant to how the Senate exercises its power since even though the opposition Democrats have not been able win a majority of the electorate for the lower house for quite some time, they are pretty much assured of controlling the Senate if the appointed Senators tend to favor the Democrats (a claim often made), since the Democrats need to elect only two of the 76 elected senators to have a majority.

    (I should mention that strictly speaking Senators are not supposed to be aligend with or members of a political party. But that doesn’t give much comfort to anyone who is the subject of a corruption charge or impeachment proceeding. We all know the reality of politics.)

    Now who appoints the appointed Senators and why is that relevant to impeachment proceedings based on corruption charges. This is where it gets very interesting.

    A five member Senate Appointing Committee selects the appointed Senators. This committee consists of the (1) President of the Constitutional Court; (2) the Chairmen of the Election Commission; (3) the Chairmen of the State Audit Commission; (4) a Judge in the Supreme Court of Justice; and (5) a Judge of the Supreme Administrative Court. Interestingly, the first three positions are selected by the Senate. And it is often claimed that the appointed Senators and the second two positions have aligned politics and interests. Irrespective, with the Senate selecting the first three positions of the Senate Appointing Committee, it all begins to look a bit circular.

    It could appear as though one group could effectively control the Thai Senate in perpetuity and that claim has been made. The structure certainly allows that. So who originally appointed the appointed authorities? In 2006 Thailand had a coup which ousted Thaksin from power and a new constitution was drafted that provided for, among other things, a semi-appointed constitution and enhanced the power of various “independant” agencies.

    And this structure has been vigiriously defended. When the lower (fully elected) house voted for a fully elected Senate,the Constitutional Court quickly struck that ruling down as being incompatible with democracy. Yes, a fully elected Senate is not democratic. And bear in mind that the President of the Constitutional Court sits on the committee that appoints the appointed Senators.

    The Senate also appoints the members of the NACC. And the impeachment proceedings are conducted by the Senate. This, perhaps, might help explain why there is a perception of bias.

    Now when this structure for adjudicating impeachment claims is coupled with the ability to impeach on the basis of claims that might not ordinarly be considered corruption (negiligent administration?) and short conclusory decisions that don’t set out the rationale for a prima facie finding of corruption (or anything else), you can understand why the government expresses concern about the neutrality and fairness of the process.

    Again, I am not taking sides in this battle, but I do think readers of this blog need to understand who is involved in the impeachment process and how the appointed bodies that decide questions of impeachment and corruption come to be appointed. It is in this context that claims are made that the government is being impeached for political decisions (what government doesn’t subsidize farmers?) rather than what we would recognize to beach impeachable matters.

  6. Thanks for the very nice analysis of how the Thai Constitution operates. Reminiscent of the efforts of the drafters of the U.S. Constitution to mix a highly democratic lower house with an upper house appointed by state legislatures. No?

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