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Thailand: Corruption Court Established

(Oct. 10, 2016) On October 4, 2016, Thailand opened a specialized corruption court, with an initial load of 70 cases. The purpose of having a dedicated court is to expand the reach of prosecution of corruption offenses to the private sector and lower levels of government and to resolve corruption cases more quickly.  (Scott Heidler, Thailand Introduces New Anti-Corruption Court, AL JAZEERA (Oct. 2, 2016); Taylor Isaac, Thailand Opens Specialized Corruption Court, PAPER CHASE (Oct. 4, 2016).)

The Law for the Organization of the Courts of Justice prescribes in general that “[o]ther courts of justice shall have power to try and adjudicate cases as prescribed by the Act for the establishment of the court or other laws.”  (Law for the Organization of the Courts of Justice, § 20, annexed to the Act Promulgating the Law for the Organization of the Courts of Justice B.E. 2543 (May 18, 2000), Thailand Court of Justice website.)  The act establishing the new Court was published in the Government Gazette on August 16, 2016.  (Text of the Act (Aug. 10, 2016), GOVERNMENT GAZETTE (Aug. 16, 2016), Anti-Corruption Operation Center website (in Thai).)

The National Legislative Assembly, Thailand’s unicameral legislature, unanimously approved the legislation creating the Criminal Court for Corruption and Malfeasance Cases on June 16, 2016. (NLA Approves Bill to Create Criminal Court to Deal Exclusively with Corruption Cases,  PATTAYA MAIL (June 17, 2016).)  The court was formed by upgrading a division of Thailand’s Criminal Court that had already been handling corruption and malfeasance cases to a separate court, with all corruption cases falling under its purview.  (Id.)  The new court will have jurisdiction over criminal cases in which:

  • state officials are charged with malfeasance in office or irregularities;
  • state officials are charged with money laundering and violations of laws on bidding and joint ventures between private and government sectors;
  • individuals are charged with giving, receiving, or demanding bribes and intimidating, coercing, or using influence to force state officials to act or not to act in accordance with the Criminal Code; and
  • individuals are charged with deliberately refusing to declare assets, falsely declaring assets, or covering up assets that should have been declared. (Id.)

Reactions to Establishment of the New Court

Reportedly, in Thailand “[a]nti-corruption legislation is inadequately enforced, and facilitation payments and gifts are common in practice.” (Thailand Corruption Report, GAN Business Anti-Corruption Portal (last updated Nov. 2015).)  Public policy expert Weerasak Krueathep commented that the establishment of the new corruption court is “a ‘symbolic move’ by the government to gain ground in the court of public opinion,” to show that it is “making good on their promise of cracking down on corruption.”  (Heidler, supra.)  Others noted that it is necessary not just to prosecute more cases, but to undo a “culture of corruption”; as Kan Yuenyong of the Siam Intelligence Unit, stated, “[e]nforcing the law is not enough … .  We need to improve the condition of the people first and get them to understand that corruption is not good for the country as a whole.”  (Id.)

Related Legislation

Organic Act on Anti-Corruption

A little over a year ago, Thailand’s Organic Act on Anti-Corruption was amended to impose harsher penalties on state officials, introduce new offenses for bribery involving foreign government officials and international organizations (including the possible imposition of the maximum penalty, capital punishment, for those foreigners found guilty), and give new powers to the National Anti-Corruption Commission and the Thai Courts.  (Text of the Act (July 9, 2015), ROYAL THAI GOVERNMENT GAZETTE (in Thai); Organic Act on Counter Corruption, B.E. 2542 (1999), Organisation for Economic Co-Operation and Development website; Wendy Zeldin, Thailand: Anti-Corruption Law Penalties Extended to Foreigners, GLOBAL LEGAL MONITOR (Aug. 7, 2015); Anti-Corruption in Thailand: New Amendment Strengthens Rules on Corporate Bribery, NORTON ROSE FULBRIGHT (Feb. 2016).)

The amendments also brought Thailand into conformity with the 2003 United Nations Convention Against Corruption. (Anti-Corruption in Thailand: New Amendment Strengthens Rules on Corporate Bribery, supra; UNITED NATIONS CONVENTION AGAINST CORRUPTION (2004) (brochure with text), U.N. Office on Drugs and Crime website.)  Before the adoption of the amendments, the Act had applied only to Thai government, not foreign, officials.  (Anti-Corruption in Thailand: New Amendment Strengthens Rules on Corporate Bribery, supra.)

Penal Code

While the Organic Law on Counter Corruption criminalizes the corrupt practices of public officials and corporations, including foreign officials and international organizations, the Thai Criminal Code criminalizes active and passive bribery of public officials by persons who are in the public or private sector, but does not include facilitation payments. (Thailand Corruption Report, supra; Criminal Code B.E. 2499 (1956), as amended to 2003), United Nations Office on Drugs and Crime website.) A “facilitation payment” is defined as “[a] payment made to a government official to facilitate approval of some type of business transaction or activity.” (Facilitation Payment, Business Dictionary website (last visited Oct. 6, 2016).)

For example, conviction of the offense of bribing an official is punishable with up to five years of imprisonment or a fine of THB10,000 (about US$287), or both; the same punishment applies to anyone who accepts a benefit for himself or the other person as a return for inducing any official, “by dishonest or unlawful means, or by using his influence, any official … to exercise or not to exercise any of his functions … .” (Criminal Code B.E. 2499, §§144 & 143, respectively.)  Punishments are much heavier for officials convicted of wrongful exercise of their power; they include imprisonment for 5 to 20 years, life imprisonment, and in some cases the death penalty.  (Id. Ch. 2, Malfeasance in Office, §§ 147-156; Ulrich Schmitt, Bribery in Thailand (May 19, 2015) THAILAND LAW LIBRARY.)

Moreover, “the knowledge of corrupt acts alone can bring officials to jail” (§ 164) and “[t]he passive bribery of persons who accept advantages can also be punished before they are appointed to become officials” (§§ 150 & 202).  (Schmitt, supra, citing to Criminal Code).  The punishments for bribery of judicial officials are more severe than for regular officials, with attempted bribery of judicial official, for example, punishable on conviction by imprisonment for up to seven years and a fine not exceeding THB14,000 (about US$402).  (Id., citing to Criminal Code § 167; see also Douglas Mancill, Thai Anti-Corruption Law: An Overview (Jan. 25, 2016).)

New Act on Judicial Misconduct

Another recent measure is the adoption of a law to counter judicial corruption. (Text of the Act (Sept. 26, 2559/2016), ROYAL THAI GOVERNMENT GAZETTE, v. 133 part 86A (Sept. 30, 2016) (in Thai).)