NACC’s new law on Conflict of Interest

NACC’s new law on Conflict of Interest

Transparency is a fundamental principle that every worker should comply with, whether in the private or public sector. However, one of the positions kept an eye on transparency is state officials who are in positions that often have issues on conflict of private and public interests that are sometimes considered as serious problems.

The Bureau of Conflict of Interest, Office of the National Anti-Corruption Commission (NACC) specifies that the Organic Act on Anti-Corruption, B.E. 2561 (2018) prescribed conflict of private and public interests in Chapter 6, Section 126-129. The provision is to prevent the conflict of private and public interests which result from public officials being authorised by state for the approval, permission, concession, and signing contracts, including the authority in supervision, monitoring, control, inspection or prosecution and the criteria accepting property or any other benefit of public officials. In addition, the NACC prescribed 5 issues of The Notification of the National Anti-Corruption Commission. Such NACC’s law and the Notification shall contain the following particulars:

Section 126 prohibits The NACC, persons holding a position in independent agencies and public officials as prescribed by the NACC as well as the spouse of such public officials (including persons living together as husband and wife without registering marriage certificate considered as the spouse prescribed by law) from undertaking bussiness the following :

(1) Being a contractual party or being a stakeholder in a contract made with a state agency, (2) Being a partner or a shareholder in a partnership or company which is a contractual party to a state agency, (3) Obtaining concession or possessing the concession rights, or being a contractual party in a monopolistic manner, or being a partner or shareholder in a partnership or company which operates such business, (4) Being a relevant stakeholder as a member of the Board, consultant, agent, staff or employee in a private entity.

On 13 March 2020, the Government Gazette issued The Notification of the National Anti-Corruption Commission prescribing the positions of public officials are prohibited from undertaking business in accordance with Section 126. Approximately 9,900 public officials are as follows: (1) persons holding political positions, Prime Minister/Minister/Member of the House of Representatives/Senator, (2) Persons holding high-ranking positions such as the Permanent Secretary/Director General of the Department/the head of a government agency at the level of 

Ministry, Sub-Ministry, Department/Supreme Commander/Provincial Governor/Permanent Secretary of the Bangkok Metropolitan Administration/Member of the Board and the Chief Executive of State Enterprise/Head of Independent agencies according to the Constitution, and others. (3) Local Administrators/Bangkok Governor/Pattaya City Mayor/President of the Provincial Administrative Organisation/Mayor/President of Subdistrict Administrative Organisation including public officials are authorised to act. The Notification thereby prescribed the number of shares in a limited company or a public limited company to public official in accordance with Section 126 (2) (3), not exceeding 5 percent of the total number of share.

Section 127 prohibits persons holding positions in independent agencies, persons holding high-ranking positions and persons holding political positions as prescribed by the NACC from undertaking any act under Section 126 (4). Prohibited businesses are becoming a relevant stakeholder as a member of the Board, consultant, agent, staff, or employee in a private entity under the supervision, control or inspection of a state agency within 2 years as from date of vacation from office. 

On 13 March 2020, the Government Gazette issued The Notification of the National Anti-Corruption Commission prescribing the positions of public officials are prohibited from undertaking business in accordance with Section 127 as follows: (1) persons holding political positions, Prime Minister/Minister/Member of the House of Representatives/Senator, (2) persons holding high-ranking positions such as the Permanent Secretary/Director General of the Department/the head of a government agency at the level of Ministry, Sub-Ministry, Department/Supreme Commander/Provincial Governor/Permanent Secretary of the Bangkok Metropolitan Administration/the Chief Executive of a State Enterprise/Head of Independent agencies according to the Constitution, and others.

Section 128 prohibits public officials of any position and a person who has vacated office of a public official for less than 2 years from accepting property or any other benefit which may be calculated in monetary value, but there are exceptions, acceptance which is permitted by law on 13 March 2020. The Government Gazette issued The Notification of the National Anti-Corruption Commission regarding accepting property or any other benefit on ethical basis of public officials. “Any other benefit which may be calculated in monetary value” refers to anything which has value such as discounted, entertainment, service, training or any other thing of similar quality. “Accepting property or any other benefit on ethical basis” refers to accepting property or any other benefit which may be calculated in monetary value from any person on festival occasion or important day including accepting property or any other benefit which may be calculated in monetary value on congratulations occasion, expressing gratitude, welcoming, offering condolences or social etiquettes. Public officials can accept property or any other benefit in the following cases:

(1) Accepting property from any person other than relative with the price or value of property from each person and on each occasion which does not exceed 3,000 Baht.

(2) Receiving from general giving without specifying recipient, such as a government lottery award or prizes from various sweepstakes, or others.

In case of public official accepts property or any other benefit which does not comply with the law and receives out of immense necessity in order to maintain friendship or good relationship, public official must report the particulars regarding accepting property or any other benefit according to prescribed forms by the NACC to Chief of Departments, the top executive of respective public agency or the authority who has the power of appointment and removal, as the case may be within 30 days as from the date of accepting property. For the decision that whether there is a reason, necessity, suitability and appropriation for the public official to accept such property or any other benefit. In case of there is an order that is not appropriate to accept property or any other benefit, such return must be undertaken immediately. In case the property cannot be returned, it shall be conceded to become property of the respective agency without delay. 

After having done so, it shall be considered that public official has never received such property or any other benefit.

The act which violates Section 126, shall be liable to imprisonment for a term not exceeding 3 years or to a fine not exceeding 60,000 Baht or both.

The act which violates Section 127, shall be liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding 10,000 Baht or both. 

The act which violates Section 128, shall be liable to imprisonment for a term not exceeding 3 years or to a fine not exceeding 60,000 Baht or both.

In case of inquiries or legal discussion regarding undertaking prohibited business on conflict of interest, under NACC’s law or accepting property violates under NACC’s law, Section 126-128, can contact us at the Bureau of Conflict of Interest, Office of the National Anti-Corruption Commission, or Tel. (66) 2528 4800 ext. 4881, 4232, or 4234.

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