Are the Thai Anticorruption Agency’s Charges against the PM Politically Rash or Politically Shrewd?

In my last post, I discussed the recent charges brought by Thailand’s National Anti-Corruption Committee (NACC) against the current Prime Minister, Yingluck Shinawatra, for failing to prevent corruption in the Thai government’s controversial (and recently discontinued) rice purchasing program. There are a few respects in which this case raises important questions not just for Thailand, but for anticorruption enforcement more generally. One, which I discussed last time, is the fact that the NACC has charged the Prime Minister not with engaging in corruption, but with (criminally) failing to prevent corruption. Another concerns how the NACC is managing – or failing to manage – the delicate and difficult politics of bringing charges against a sitting Prime Minister in the midst of ongoing political turmoil, in which the Prime Minister and her party remain very popular with much of the nation — and would almost certainly would have won the election that opposition protesters effectively blocked. My educated guess is that if you were to ask members of the NACC how the political situation affected their decision-making, they would say that it had no effect at all – they simply followed the evidence where it took them, without fear or favor. This is what anticorruption enforcement officials always say, at least publicly. I suspect they may actually believe it, and perhaps it’s (sometimes) true. But anticorruption enforcers operating in politically difficult environments often do, and often should, think carefully and strategically about the constraints and opportunities those environments create – Gabriel Kuris’s studies of the Indonesian KPK (here and here) provide nice evidence of that.

So, was the NACC’s decision to bring these charges against the Prime Minister at this moment a politically rash decision, or a politically shrewd one? It’s easier to make the case for “rash”, but at the risk of revealing my ignorance of Thai politics (or my ignorance more generally), I’m going to make a tentative case for “shrewd”. Continue reading

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. Continue reading

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.

Continue reading