13 Mar Important Amendment to Thailand’s Anti-Corruption Act
Important Amendment to the Thailand’s Anti-Corruption Act
Amendment 3 of Thailand’s Anti-Corruption Act, the Organic Act on Counter Corruption B.E. 2542 (1999) (the Act), came into effect on July 10, 2015. The amendment was influenced by the U.K. Anti-Bribery Act and by the U.S. Foreign Corrupt Practices Act (FCPA) and its enforcement agencies. Under the Act, Thailand now complies with international standards for anti-corruption. The amended Act covers offenses and punishments relating to bribery amongst state officials in Thailand, foreign countries, and officials from international organizations. The National Anti-Corruption Commission can now investigate and file suits in Thailand and in foreign courts against Thai and foreign state officials, individuals in the private sector, and international organizations. A major objective of the amended Act is to compel Thai companies to draft and implement anti- corruption policies that will help prevent corrupt practices before they can happen.
Under the new penalties set in article 13 of the Act, taking bribes in return for malfeasance is now punishable with a term of 5 to 20 years of incarceration, life incarceration, or the death penalty, and a monetary penalty of 100,000 to 400,000 baht (about US$2,855-$11,420) may also be imposed. How the offense is judged to have harmed Thailand will set the severeness of the imposed penalties. However, even though prior law allowed for the death penalty for a bribery conviction, capital punishment for this crime has never been imposed. For corruption cases, the statute of limitations is 20 years. However, the statute of limitations is suspended if the party flees Thailand during prosecution or after being found guilty and only starts again after their return.
Thailand’s original anti-corruption, the Organic Act on Counter Corruption B.E. 2542 (1999), only prohibited parties from offering bribes to state officials. Now, the Act prohibits foreign and public international officials or “intermediaries” to solicit the use of personal authority to wrongfully perform duties. The Anti-Corruption Act now applies to foreign officials working for foreign governments and international organizations who can be convicted of soliciting corrupt payments to perform their duties. The Act requires a person holding a political position or a state official to declare their assets to the Office of the National Anti-Corruption Commission (NACC) and authorizes the NACC to investigate state officials who have accumulated unusual wealth in violation of Thai law. The Act also applies to officials of political parties
Under Amendment 3 of the Anti-Corruption Act, fines can now be enforced on companies when a party related to a company commits corrupt acts, even if the offense is committed without the knowledge of the company’s directors and this appears to be based on the U.K. Anti-Bribery Act. Under the above Act, if an agent of a company commits a corruption offense in the interest of a company, that company will be held liable for the corruption offence; unless that company can prove it had the appropriate internal control measures in place to prevent the corrupt act. A new provision to the Anti-Corruption Act, found in section 123/5, states that if a corruption offense is committed by a party related to a juristic person and in their interest, such juristic person will be deemed guilty of the offence under this Section and be liable for a fine. The minimum fine will be equal to the amount of damages incurred or benefits gained, and the maximum twice this amount, unless the juristic person can prove it had appropriate internal control measures in place to prevent the offence.
The definition of official for anti-corruption purposes under the amended Act now includes foreign officials and officials of international organizations. The Act defines a foreign official as a person who holds a legislative, executive, administrative, or judicial position for a foreign country or any other person who works for the government of a foreign country including an employee of a government agency or state enterprise, whether they are elected or appointed, holds a permanent or temporary position or receives a salary or any other benefits. An official of an international organization is defined as a person who works for an international organization or who is appointed by an international organization to act on its behalf. It is now illegal to bribe or attempt to bribe a foreign official. A foreign official’s request for or acceptance of a bribe has also been criminalized.
The fundamental notion of what constitutes a corrupt act under Thai law does not differ notably from the ideals of the anti-corruption laws of other countries. For example, the definition of a benefit offered to, accepted, or requested in violation of Thailand’s anti-corruption laws is very broad. It is not limited to tangible assets and a benefit does not have to be defined in monetary terms. If assets are sold or offered for sale at a price different from the price that would be obtained through normal negotiations, a benefit has been conferred. This could therefore cover a private party selling an asset at less than its value to an official or an official receiving more than its value when that official sells an asset. The asset does not need to be tangible, meaning it could be a job offer or a service of some kind. The benefit must be provided or offered with the motive to cause an official to discharge or fail to discharge an official duty.
A public official is guilty of corruption if it is found that the official is known to solicit bribes to discharge their duties, even if a bribe is not paid. For example, for a customs official who needs a bribe to perform their required duties, the customs official has violated Thai anti-bribery laws. On the other hand, a party paying or offering a benefit will be guilty only if they pay the bribe to motivate a public official to illegally discharge or illegally fail to discharge that public official’s duties. Intermediaries who request or receive benefits from inducing an official to discharge or fail to discharge their official duty also violate the Act. The actual payment or provision of a benefit to an official is not required.