Death penalty for graft a dangerous road to go down
The latest proposal by the National Reform Steering Assembly for the imposition of the death penalty on public figures convicted of graft causing damage exceeding one billion baht opens up a number of moral dilemmas.
I have gone on record to state publicly that grand corruption (the abuse of high-level power that benefits the few at the expense of the many) should be considered a crime against humanity, and be defined as such under Article 7 of the Rome statute per the International Criminal Court (ICC).
Given my public stance, any infringement amounting to serious levels of corruption should draw congratulatory applause from yours truly, but could I ever reconcile support for the death penalty for an offence of corruption?
The death penalty is rightly controversial. I myself am against it subject to very limited exceptions. However, I do not propose to debate the death penalty per se here. Rather, I raise some questions about its application as a punishment for corruption in Thailand today.
My personal and professional stance on grand corruption goes back several years. I have written several articles and a paper on the subject. Earlier this year I was part of a team that presented on the topic at the C5 Fraud and Asset Recovery Conference in Miami.
The initial hurdle I have to navigate is that relating to "value": how can somebody guilty of graft amounting to one billion baht (US$28 million) be sentenced to death, and someone else guilty of an existing crime of a lesser value only get five years imprisonment?
Making judgements based entirely on value is a dangerous road to go down. As I write this, UK law enforcement agencies and their courts are utilising a sentencing system that considers "victim impact" and not simply "value".
The UK perspective takes into account differing scenarios measured in terms of the adverse human consequences of fraud. The theft of £1 million (44 million baht) from a multinational company may have less detrimental effect on the corporate victim than the loss of £100 stolen from an old-age pensioner. How should you quantify the wrongdoing in such cases?
The Thai proposal recognises that corruption has to be dealt with firmly, but it is the ultimate sentence and how it is to be determined that needs to be considered and debated.
For comparative purposes, if a public official committing the crime of corruption in Thailand receives US$20 million from a public works contractor for them to win a public tender competition, how would another criminal be perceived who received a bribe of $5m from a contractor that resulted in a hospital having to close down its services?
The impact is inherently different. One potentially affects a corporate competitor seeking to outbid the dishonest contractor, and the other affects the ordinary members of the public who suffer as a consequence of losing their hospital. But this said, my reading of the proposal would see both receiving prison sentences of five years or less.
The issue isn't as simple as whether or not you are pro- or anti-death penalty. The controversy raised is one whereby a corrupt official knows that if he or she acquires less than one billion baht, they can serve five years in jail and live out the rest of their life upon release (potentially with assets hidden elsewhere). Some would say that the possibility of obtaining US$28 million (or just short of that figure) is worth the risk, but woe betide anybody who gets his sums wrong and acquires slightly more than this potentially fatal cutoff figure.
Although I welcome Thailand's determination to stamp out corruption, I would question the simplistic mathematics of deciding who is going to live and who is going to die on the basis of a line drawn in the sand. It is effectively providing the criminal with a goal line to reach and attain, but not cross.
Finally, the legislation should not be used retrospectively. One could never condone such action.
Hopefully, this will not be the case and the Thai stance is a genuine attempt at preventing future graft.
Martin Kenney is Managing Partner of Martin Kenney & Co (www.martinkenney.com), Solicitors, a specialist investigative and asset recovery practice based in the BVI and focused on multi-jurisdictional fraud and grand corruption cases.