EFFECTIVE LEGAL AND PRACTICAL MEASURES FOR COMBATINGCORRUPTION
Pinthip Leelakriangsak Srisanit*

I. INTRODUCTION
Corruption, a parasite on society, has existed in Thailand for a long time. Corruption is not restricted toa particular country or a region, but it appears to be a global problem, and causes particularly huge damage
to developing countries, such as Thailand, especially in terms of bribery and fraud in public procurement.
All over the world, countries try to find effective measures to deal with corruption, including legislative andsocial measures.
Corruption occurs in both the public and private sectors. This paper will nevertheless focus on
corruption in the public sector. Although corruption does not have a specific definition, it can be generally
defined as ‘abuse of public authority or power for a private gain’. This reflects a conception that corruption
occurs when an official exercises the power or authority of his or her office or position for personal interest.
‘Corruption’ is not limited only to monetary gain; it may rather take other forms of benefit, such as discounts
when buying goods or services, or receiving stocks or shares in a company without the name of the holder
being specified, etc.
The Corruption Perceptions Index (CPI) measures the perceived level of public sector corruption
in 180 countries around the world. A higher CPI means a lower level of corruption or a cleaner public
administration; for example, a country with CPI of nine is cleaner than the one with a rating of five. The
higher CPI of the developed countries indicates a situation of more transparency than countries with lower
ratings.1 If we focus on Asian countries, the index shows that the CPI of developed countries, like Japanand Singapore, are higher than those of developing countries or under-developed countries. In the selected
CPI scores below, Thailand and India were at same rating of 3.4; Indonesia was rated 2.8; Cambodia 2;
and Myanmar 1.4. This means that in Thailand corruption seems to be less of a problem in comparison toIndonesia, Cambodia and Myanmar.
Myanmar (Burma) 1.4
Cambodia 2
Philippines 2.4
Indonesia 2.8
Thailand 3.4
India 3.4
China 3.6
Malaysia 4.5
Rep. of Korea 5.5
United States 7.5
Japan 7.7
Singapore 9.2
0

2.5

3.4

5

Source: Corruption Perceptions Index (CPI) 2009
*Public Prosecutor, International Affairs Department of the Office of the Attorney General.
1 http://www.transparency.org/policy_research/surveys_indices/cpi/2009

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7.5

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The current situation of corruption in Thailand is divided into two scales: grand corruption and petty
corruption. Grand corruption is generally committed by high level public officers who gain more benefits
from abuse of their authorities. For example, a minister or a chief of a public organization can abuse his or
her authority for private gain by committing corruption in public procurement. This is categorized as grandcorruption because he or she gains a lot of money from doing so and it causes huge damage to society. On
the other hand, petty corruption normally consists of routine practices committed by lower ranking public
officers who gain not much benefit. When a traffic police officer abuses his or her authority by demanding
money from a car driver who violated a traffic regulation in return for not issuing a traffic ticket, it isclassified as petty corruption. Although just one instance of petty corruption does not cause gross social
harm, all such petty acts together destroy the government’s credit vis-à-vis the citizenry and eventually
result in huge damage to society as well.

II. LEGAL ASPECT
Thai legislators have enacted various laws and regulations to prevent and combat corruption. They are
divided into two categories in connection with their nature: substantive law and procedural law.

A. Substantive Law
Regarding substantive law, there are two major types of laws in Thailand punishing acts of corruption: theThai Penal Code and the Organic Act on Counter Corruption B.E. 2542 (1999).
The provisions of the Penal Code incriminating acts of corruption are contained in Articles 147 to 157
and those that aggravate the punishment for specific officers are stipulated in Articles 200 to 202. Article
147 punishes officers who commit embezzlement in their duties with imprisonment from five to 20 years
or imprisonment for life and fine of 2,000 to 40,000 Baht.2 Besides, Articles 148 to 150 punish officers
conducting various types of bribery with imprisonment from five to 20 years or imprisonment for life or
the death penalty. Article 151 incriminates wrongful exercise of an officer’s function damaging the State
with a maximum imprisonment for life; meanwhile, Article 152 punishes officers who have a conflict ofinterest in their duties with a maximum imprisonment of 10 years. In addition, Articles 153 to 156 impose
criminal sanctions, up to imprisonment for life, on corrupted of officers whose duties concern accountancy
functions. A general offence is prescribed in Article 157 as misconduct in office punished with a maximum
imprisonment of 10 years. Moreover, aggravating circumstances are contained in Articles 200 to 202, which
aim to increase punishment for corruption committed by officers whose duties are concerned with criminal
justice such as the police, public prosecutors or judges.
In addition to imprisonment and fine, when officers obtain money from corruption, these benefits shallbe considered properties which shall be forfeited at the Court’s judgment, according to Article 34 (1) of theThai Penal Code. The forfeiture of properties has a deterring effect from committing corruption.
The Organic Act on Counter Corruption BE. 2542 (1999) establishes an independent organization called
the National Anti-Corruption Commission (NACC). The function of NACC will be explained in the section
on competent authorities below. Apart from the Thai Penal Code, the Organic Act on Counter Corruption
incriminates certain acts of corruption. For example, the conflict of interest prescribed in Article 100 shall bepunished with imprisonment not exceeding three years and fine not exceeding 60,000 Baht or both. Bribery
incriminated in Article 103 shall have the same punishment as conflict of interest.

B. Procedural Law
In the sphere of procedural law, Thailand has five major laws dealing with the procedure of corruption
cases: the Thai Criminal Procedure Code; the Organic Act on Counter Corruption B.E. 2542 (1999); theAnti-Money Laundering Act B.E. 2542 (1999); the Act of Mutual Legal Assistance in Criminal Matters B.E.
2535 (1992;) and the Extradition Act B.E. 2551 (2008)
The Criminal Procedure Code is the principal Code applied to every criminal case, including cases ofcorruption. Whenever specific Acts do not mention certain proceedings, these acts normally refer to the
Criminal Procedure Code in order to apply general principles to such proceedings.
2 As of the end of July 2010, the exchange rate is about 32 baht for 1 US dollar.

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The Organic Act on Counter Corruption B.E. 2542 (1999) not only establishes the National AntiCorruption Commission (NACC) but it also imposes powers of initial investigation of corruption in Thailand.
In connection with the Anti-Money Laundering Act B.E. 2542 (1999), it is an additional measurecombating corruption. Corruption is one of the predicate offences for the purpose of forfeiture of assets
obtaining from corruption. This act establishes the Anti-money Laundering Office (AMLO), with theauthority to temporarily restrain, seize or freeze assets involved in corruption. This measure is categorized
as a civil forfeiture system; it does not require a conviction from a criminal court.
The Act of Mutual Legal Assistance in Criminal Matters B.E. 2535 (1992), being in line with the
UN Model Law on Mutual Legal Assistance in Criminal Matters and international standards, provides
a basic framowork for international co-operation in the process of criminal litigation from the beginningof investigation to the end of trial. Many types of assistance can be provided, such as locating persons,searching and seizing objects or documents as evidence, taking statements of witnesses and confiscating ofassets.
Under the Extradition Act B.E. 2551 (2008), Thailand can extradite a person to a requesting country,
and also make a request to foreign countries to extradite a fugitive to Thailand. At present, we now havebilateral treaties with 13 countries regarding mutual legal assistance and 14 countries in relation to
extradition. However, the rule of reciprocity is applied where there is no treaty between the requesting
and the requested country for the widest possible co-operation. In addition, Thailand also signed a Mutual
Legal Assistance Treaty with ASEAN countries in 2006. The process is now pending upon the reviewing andamending of the domestic legislation.
Finally, Thailand has many other legal methods of dealing with corruption. Corresponding to international
standards, in December 2003, Thailand signed the United Nations Convention against Corruption (UNCAC),
but we have not yet ratified it. The completion of domestic legislative modifications would enable Thailand
to ratify this convention in the near future. Currently, there are still four main points of incompatibility
with the UNCAC: asset recovery (implementation of a value-based confiscation); mutual legal assistance incriminal matters; definition of ‘foreign officer’ (current Thai law incriminates only corruption by or to Thai
officers); and the statute of limitations.

III. COMPETENT AUTHORITIES CONCERNED
Many government authorities are set up for monitoring, preventing and efficiently suppressing
corruption cases, including the National Anti-Corruption Commission (NACC); the Office of Public Sector
Anti-Corruption Commission (PACC); the Office of the Attorney General (OAG); the Ombudsman; theOffice of the Auditor General; the Royal Thai Police; the Anti-Money Laundering Office (AMLO); theDepartment of Special Investigation (DSI); and the Supreme Court’s Criminal Division for Persons Holding
Political Positions. These organizations have the mutual objectives of ensuring transparency, fairness,accountability and guaranteeing civil rights. This paper will however focus on some of these agencies’ roles
and functions.

A. National Anti-Corruption Commission (NACC)
To strengthen anti-corruption efforts, the 1997 Constitution and the Organic Act on Counter Corruption
B.E. 2542 (1999) added to the the checks and balances of State by establishing the National Counter
Corruption Commission (NCCC) as an independent agent. The NCCC has a number of duties andresponsibilities both in prevention and suppression. This commission is responsible for inquiring into allkinds of corruption offences committed by all levels of government officials. As a consequence, the NCCC
has encountered a caseload problem. The best way to solve this problem is to limit the NCCC’s exercise
of its power only to corruption cases conducted by politician and high-ranking government officials. So, the2007 Constitution changed the official title of NCCC to the National Anti-Corruption Commission (NACC)
and it has been vested with only three functions: (1) declaration and inspection of assets and liabilities; (2)prevention of corruption; and (3) suppression of corruption.
The NACC is responsible for corruption cases against persons holding political positions, i.e. thePrime Minister, Ministers, Members of the Senate, Members of the House of Representatives, and high-168

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ranking government officers who are accused of being unusually wealthy, committing an offence of abuseof power and authority according to the Penal Code, or committing an offence of dishonesty in office or
corruption according to other laws. The role of the NACC is to complete an initial investigation of corruption
cases. After completion of inquiry files, the NACC will forward the investigation file with adequate legal
background to the government agency for which the accused works to start disciplinary action, if there
is a well founded basis. Otherwise, if the NACC finds grounds to believe that a criminal offence has beencommitted, it would refer the inquiry file to Office of the Attorney General for further criminal prosecution.

B. Office of Public Sector Anti-Corruption Commission (PACC)
Due to the overloaded casework of the NCCC, the 2007 Constitution established the NACC and Officeof Public Sector Anti-Corruption Commission (PACC) to deal with corruption cases. The PACC is thenewest investigation authority under the Ministry of Justice.3 This office is responsible for corruption cases
conducted by lower-ranking government officials. After completion of inquiry files, the case shall be referredto the agency concerned in the same way as the proceedings for the NACC, as mentioned above. However,the PACC has not yet exercised its full functions, pending the drafting of regulations; meanwhile, the NACC
temporarily handles its cases.
C. Office of the Attorney General (OAG)
According to the current Constitution, the Office of the Attorney General (OAG) is an independent
organization. The OAG is authorized to suppress corruption in both the private and public sectors.
Therefore, the Office of Attorney General plays an important role in deciding whether to prosecute all of thecorruption cases in Thailand.
After conclusion of inquiry files by the NACC, if a corruption offence is found, the case shall be submitted
to the Attorney General for criminal prosecution. Then, if there is sufficient evidence for a prosecution’s
charge of corruption, the Attorney General shall prosecute the accused in the Supreme Court’s Criminal
Division for Persons Holding Political Positions (in cases where the accused is politician) or in othercompetent courts (in cases where the accused is a State official). On the other hand, in case of insufficientevidence, the OAG and the NACC shall set up a joint working committee to collect further evidence
necessary for the Attorney General. After receiving such further evidence, the Attorney General will makea prosecution order. However, if the joint working committee fails to reach that point, the NACC by itself has
the power to proceed the case to the competent court or ask a private lawyer to do so.4
In addition, the Attorney General is acting as the central authority in international co-operation incriminal matters: mutual legal assistance and extradition, as mentioned in section II above.

D. Supreme Court’s Criminal Division for Persons Holding Political Positions
There are five specialized courts in Thailand: the Labor Court, the Tax Court, the Central Intellectual
Property and International Trade Court, the Bankruptcy Court and the Juvenile and Family Court. At
present, there is no permanent specialized court for corruption cases. However, the Supreme Court’s
Criminal Division for Persons Holding Political Positions was established in 1999 by the 1997 Constitution
and Article 8 of the Organic Act on Criminal Procedure for Persons Holding Political Positions B.E. 2542
(1999) for fair and speedy trial of corruption offences committed by politicians.5
This specialized division of the Supreme Court has the power and duty to try and adjudicate cases against
persons holding political positions who have been accused of becoming unusually wealthy, committing
an offence of malfeasance in office according to Penal Code, committing an offence of dishonesty in officeor corruption according to other laws. The quorum of this court consists of nine Judges of the Supreme
Court who are selected by a plenary session of the Supreme Court on a case by case basis. The trial in thisspecialized division court is founded upon the inquisitorial system.6 The orders and decisions will be final
and disclosed. Nonetheless, decisions can be appealed to a plenary session of the Supreme Court only ifthere is fresh evidence in the case.7
3 http://www.pacc.go.th/index.php?mod=about_profile

4 The Organic Act on Counter Corruption 1999, Section 97.

5 http://www.supremecourt.or.th/webportal/maincode/index.php?lang=en&base=24
6 Ibid .

7 Constitution of the Kingdom of Thailand 2007, Article 278.

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Statistics indicate that few cases have been submitted to and disposed by this specialized division of theSupreme Court: one case in 2001, two cases in 2002, one case in 2003, one case in 2004, two cases in 2007,
20 cases in 2008 and nine cases in 2009.8

IV. PERSPECTIVE IN COMBATING CORRUPTIONAs I have already mentioned in Section II above, the magnitude of punishment of corruption offences,according to the Thai Penal Code and others, is currently at the highest level, i.e. the death penalty and life
imprisonment. Nevertheless, it seems that the number of corruption cases in Thailand has not declined.
In order to solve this problem, two alternative solutions are proposed for further consideration. Firstly,
we increase the magnitude of punishment to deter the government officer from committing corruption.
Secondly, we increase the probability of prosecution of corruptors for the same reason. Both of thesesolutions could discourage the corruptors but the further question is which one is suitable for Thailand?
Regarding Becker’s Economic model of crime,9 he offers that we should raise the offender’s costs
and limit the offender’s benefits in order to reduce the offender’s incentive for engaging a criminal act.
Becker’s model is relevant to a cost-benefit analysis which is generally accepted by current leading
economists. He further suggests that the offender’s costs consist of the combination of the magnitude ofpunishment and the probability of punishment. If we raise the magnitude of punishment, such as increasing
periods of imprisonment, the offender’s cost would consequently be raised. It would be the same if weraise the probability of punishment by strengthening police units or using modern technology in criminal
investigation. In accordance with the Becker recommendation, increasing the magnitude of punishment
would have less effect on government budgets. On the other hand, the government needs to spend more
to invest in the law enforcement sector to increase the probability of punishment, including investigators,
public prosecutors and criminal courts. Therefore, Becker prefers increasing the magnitude of punishment
because it is more economical, compared to the other solution.
In my opinion, to combat corruption in Thailand, I believe that increasing the probability of punishment ismore suitable in Thailand for the following three reasons.
Firstly, according to Article 149 of Thailand’s Penal Code, we have already increased, since 1959, themagnitude of punishment to the highest level (death penalty) for those who are found guilty of bribery(although the amount of fine is still out of date and of a low rate). However, it is obvious that such measures
did not effectively eradicate corruption in Thailand. Therefore, prosecution of corruptors should be
augmented to reduce corruption.
Secondly, corruption is categorized as a ‘victimless crime’ from which only the State suffers.
Consequently, nobody files a complaint to the police when it is committed. Offenders are not intimidated by
the threat of capital punishment because they are certain that their wrongs have not been noticed by others.
However, Thai law has already introduced some measures to facilitate reporting of corruption by citizens by
issuing complaints to the NACC or PACC to begin the investigation process, as I mentioned above.
Finally, in the aspect of evidence, corruption leaves few traces for detectives to investigate. This has
a dilutive effect on investigation and punishment. Therefore, the severity of capital punishment would bediluted in the eyes of corruptors because of a lack of evidence.
For these three reasons, I propose a reinforcement of all law enforcement units to be the best solution
for combating corruption in Thailand. Although the government must invest a large budget in every law
enforcement unit; enlarging or adding to the organization, using modern investigating methods as wellas effective international co-operation, the outcome of such investment would be more profitable for thecountry. Since corruption poses a serious harm to society, a high investment in combating corruption would
absolutely not be wasteful.
8 http://www.supremecourt.or.th/webportal/maincode/index.php?lang=en&base=24

9 Gary S. Becker, “Crime and Punishment: An Economic Approach”, in Essays in the Economics of Crime and Punishment,

1974 at www.nber.org/chapters/c3625.pdf

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V. CONCLUSION
Corruption is considered a widespread problem in many nations. It is a serious transnational
phenomenon which significantly hinders economic and social development. In addition to the various
sanctions of law enforcement agencies to combat corruption, social networks or solidarity of the people
can effectively strengthen anti-corruption measures by giving the information to the justice authorities.
Finally, education can be a sustainable anti-corruption measure in which the government should invest. An
academic curriculum should inculcate the moral values of the citizenry as well as anti-corruption measuresfor children who will become the government officers of the future.

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