«the Pacific THE CRIMINALISATION OF BRIBERY IN ASIA AND THE PACIFIC Frameworks and Practices in 28 Asian and Pacific jurisdictions Thematic Review – ...»
International standards generally require coverage of three modes of active domestic bribery, namely offering, giving, and promising a bribe. The active bribery offences in CC 144 and 167 cover ―giving, offering or agreeing to give‖ a bribe. A promise to bribe is not expressly mentioned. Thai authorities state that a promise to bribe is covered by an agreement to bribe. They also assert that the offence covers an offer to bribe that is made by an individual but is not received or is rejected by an official.
As for passive domestic bribery, international standards generally demand coverage of solicitation and acceptance of a bribe. The CC and OSO Act passive bribery offences all cover an official who ―demands, accepts or agrees to accept‖ a bribe. The offences therefore meet international standards in this respect.
International standards also require coverage of a person who uses an intermediary to offer, give, solicit etc. a bribe. The CC and OSO Act active and passive offences do not expressly cover bribery through intermediaries.
According to Thailand, a person who bribes a public official through an intermediary is guilty of instigating the offence of bribery (CC Section 84). An intermediary who agrees to bribe an official is guilty of an offence under Section ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Thailand 483 143, which prohibits a person from accepting a benefit in return for inducing an official by dishonest or unlawful means to exercise or not to exercise his/her functions. If the intermediary carries out the agreement and actually bribes the official, then he/she is also guilty of the active bribery offence under CC Section
144. A similar scheme applies to the bribery of SOE officials (CC Section 84 assisting or facilitating an offence under OSO Act Section 6).
International standards also require that bribery offences cover bribes given to a public official for the benefit of a third party, or directly to a third party upon the instructions or agreement of the public official. The passive bribery offences in CC Sections 148, 149 and 201 and OSO Act Section 6 expressly refer to demanding, accepting etc. a benefit for the official ―or another person‖;
bribery that benefits third parties is thus expressly covered. However, there is no such corresponding language in the active bribery offences in CC Sections 144 and 167. According to Thailand, the briber in these circumstances is liable for assisting and/or facilitating the official to commit passive bribery (CC Section 84).
The definition of ―public official‖ in the bribery offences is somewhat narrower than required under international standards. The general active and passive bribery offences in CC Sections 144, 148 and 149 cover legislators and ―officials‖. Judicial officials are covered in CC Sections 167 and 201. Since the term ―officials‖ is undefined in the CC, it is not entirely clear that it covers all persons who provide a public service, or who exercise a public function, including for a public agency. According to the Thai authorities, texts on Thai criminal law state that these officials are covered by the CC. Thailand is also considering amending the CC in this respect.
Another concern with the definition of ―public official‖ is coverage of persons who perform a public function for a public enterprise. The CC presumably does not deal with such persons, since the OSO Act was enacted for this purpose. However, two issues arise under the OSO Act. First, the OSO Act does not cover active bribery of SOE officials or employees. According to the Thai authorities, active bribery of SOE officials are again considered to be a crime of assisting and/or facilitating an SOE official to commit passive bribery.
Second, even for passive bribery, the OSO Act only covers companies in which the state is a majority shareholder; it does not cover enterprises in which the state controls despite a minority shareholding, e.g. because the state holds a ―golden share‖.
Thailand‘s bribery offences also fall short in terms of the types of acts that a bribed official is asked to perform. International standards require broad coverage of bribes in order that an official acts or omits to act in relation to the performance of official duties, including any use of the public official‘s position or office, and acts or omissions outside the official‘s competence. The CC ADB/OECD Anti-Corruption Initiative for Asia and the Pacific 484 Criminalisation of Bribery in Asia and the Pacific Section 144 and 167 active bribery offences cover bribes in order that an official breaches his/her duty. They do not cover bribery to induce an official to perform his/her duty or to exercise his/her discretion in favour of the briber. The passive bribery offences (CC Sections 149, 201 and OSO Act Section 6) are broader and cover an official who exercises or fails to exercise his/her functions.
However, none of the active or passive bribery offences covers an official who acts outside his/her competence.
Regarding the nature of the bribe, all of the bribery offences refer to the giving etc. of ―a property or any other benefit‖ to an official. Hence, both pecuniary and non-pecuniary bribes are covered. The Thai authorities state that the definition of a bribe is not affected by the value or the results of the advantage, or whether the briber was the best-qualified bidder who otherwise could properly have been awarded the advantage. However, it is unclear whether the definition is affected be local custom towards the giving of the advantage, tolerance by local authorities, or the alleged necessity of giving the advantage.
Regarding defences, there is no express defence of small facilitation payments per se. However, as noted above, giving bribes to induce an official to perform his/her duties is not a crime (though it is an offence for an official to accept such payments).
Co-operating offenders may receive a reduction in sentence. Pursuant to CC Section 78, a reduction of punishment up to one-half is available in certain ―extenuating circumstances‖, such as when an offender provides information to the Court at trial.
BRIBERY OF FOREIGN PUBLIC OFFICIALSIt is not an offence to bribe public officials of foreign governments or public international organisations in the conduct of international business. The definition of officials in the CC and OSO Act refer only to Thai public officials. In 2009, the Ministry of Justice submitted to a Bill to the National Assembly that would create a foreign bribery offence but late withdrew the Bill. The Ministry was drafting a second Bill at the time of this report.
LIABILITY OF LEGAL PERSONS FOR BRIBERY
The precise scope of liability of legal persons for bribery is not clear. The CC and OSO Act bribery offences do not specifically provide for corporate liability, unlike other types of offences. While the Supreme Court has stated that criminal liability may be extended to legal persons, these cases did not ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Thailand 485 involve bribery. Nevertheless, the Thai authorities believe that legal persons may be held liable for bribery because the CC bribery offences apply to ―whoever‖ engages in the prohibited acts. This formulation, in their view, covers both natural and legal persons. They also believe that additional sanctions such as forfeiture, denial of license, government blacklisting, and civil action by a victim may be available.
The OECD Working Group on Bribery has recognised minimum standards for meeting the corporate liability requirement in the OECD AntiBribery Convention. These standards are instructive for meeting the comparable standard under the UNCAC. When deciding whether liability of
legal persons should be imposed, countries should take one of two approaches:
(a) The level of authority of the person whose conduct triggers the liability of the legal person should be flexible and reflect the wide variety of decision-making systems in legal persons. In other words, liability may be triggered by the conduct of someone who does not have the highest level of managerial authority in certain cases.
(b) Alternatively, liability is triggered when a person with the highest level managerial authority (i) offers, promises or gives a bribe to an official; (ii) directs or authorises a lower level person to offer, promise or give a bribe to an official; or (iii) fails to prevent a lower level person from bribing an official, including through a failure to supervise him/her through a failure to implement adequate internal controls, ethics and compliance programmes or measures.
JURISDICTION TO PROSECUTE BRIBERYCC Sections 4 and 5 provide territorial jurisdiction to prosecute any offences committed wholly or partially in Thailand, or when the consequences of an offence are felt in Thailand (passive territorial jurisdiction).
There is extraterritorial jurisdiction to prosecute passive but not active domestic bribery. CC Section 9 states that a Thai official who commits passive bribery outside Thailand shall be punished in Thailand. However, there is no corresponding jurisdiction to prosecute the briber in such a case. The provision also applies only to bribery offences in the CC and not to bribery of officials of SOEs under the OSO Act.
There is no nationality jurisdiction to prosecute bribery. CC Section 8 provides jurisdiction to prosecute Thai nationals for committing certain crimes outside of Thailand, but the section does not cover bribery.
SANCTIONS FOR BRIBERYThe available punishment for Thailand‘s bribery offences is shown in the table below. Statistics on the actual sanctions imposed are not available.
Confiscation is also available. CC Section 34(1) allows forfeiture of ―all properties‖ given under the [CC bribery offences]‖. CC Section 34(2) allows forfeiture of ―all properties ―given in order to induce a person to commit an offence or to reward the committing of an offence, unless the property belongs to someone who did not connive in the commission of the offence.‖ CC Section 33 allows forfeiture of instrumentalities of crime and property acquired through the commission of an offence. A conviction is required for forfeiture under all of these provisions. According to Thai authorities, CC Sections 33 and 34 also apply to the offence of bribery of officials of state enterprises under the OSO Act.
However, there may be at least two shortcomings in these provisions in the CC. First, they do not allow forfeiture of direct or indirect proceeds (i.e. the proceeds of proceeds). Second, there are no provisions for imposing a fine in lieu of confiscation (i.e. value confiscation). It is unclear what remedy, if any, is available if the property that is the subject of confiscation has disappeared or has been spent. Thailand states that, at the time of this report, the National Assembly was considering a Bill that would allow forfeiture of the indirect proceeds of crimes and value-based confiscation.
Forfeiture may also be available under the Anti-Money Laundering Act (AMLA). The Act allows a court to forfeit a bribe and the proceeds of bribery, including indirect proceeds. The scope of the AMLA may thus be broader than that of the CC.
Limited administrative sanctions are available but only against public officials. Disciplinary penalties for corruption are available against civil servants under the Civil Service Act B.C. 2551 (2008). According to Thai authorities,
bribers are not subject to administrative sanctions such as debarment from seeking public procurement contracts.