Yesterday Matthew discussed the wisdom of the Thai anticorruption agency’s recommendation that Thai Prime Minister Yingluck Shinawatra be charged with failing to prevent corruption. The 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.