Conflict of interest: public and private sectors to fight against corruption
published : 13 Jan 2021 at 09:00
Becoming a state party of the United Nations Convention against Corruption 2003 (UNCAC) in 2011, Thailand has elevated its anti-corruption scheme into a national agenda by implementing its domestic laws in line with the UNCAC to manage conflict of interest which is a cause of fraudulent behaviours.
The National Anti-Corruption Commission (NACC) specifies that Chapter 6 of the Organic Act on Anti-Corruption (OAAC) B.E. 2561 (2018) prescribes against conflicts of private and public interests in compliance with the Chapter 2 of the UNCAC, Article 12, Sub-section 2 (e), detaling prevention of conflicts of interest by “imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.”
In relation to the UNCAC’s Sub-section 2 (e), Thailand OAAC’s Chapter 6, Section 126-129, currently raises more specific concerns regarding prohibitions to public officials who have authority to grant approval, permission and concessions and sign contracts as well as have been authorised to supervise, monitor, control, inspect and prosecute in cases concerning acceptance of property or any other benefit. These measures are legislated to monitor public officials during their tenure and within two years as from the date of vacation from office. Public officials failing to abide by such measures are deemed to have committed malfeasance in office and/or in judicial office.
This, however, does not prohibit public officials from accepting all sorts of property. Exemptions are made for some provision of property and other benefits legally allowed, including gratuitous acts from public officials’ relatives, from non-relatives, where the price or value on each occasion does not exceed THB 3,000, as well as cases of provision where the recipient is not identified.
With regard to the significance of anti-corruption from the private sector’s perspective, Chapter 2 of the UNCAC indicates that state parties are to perform their own preventive measures. They are also required to carry out mandatory provisions to manage incidences of conflict of interest that arise between private and public sectors. Such is specified in the OACC, Section 176, which states: “Any person who gives, offers to give, or promises to give any property or benefit to a public official, foreign public official, or official of a public international organisation, with an intent to induce such person to wrongfully perform, not perform or delay the performance of any duty in his or her office… a person associated with any juristic person and the action was taken for the benefit of such juristic person, provided that such juristic person does not have in place appropriate internal control measures to prevent the commission of such offence, the juristic person shall be deemed to have committed the offence under this Section…” In a legal sense, this current recognition of both criminal and civil offenses concerning a benefit provider means that the National Anti-Corruption Commission has essentially extended its anti-corruption strategy into a new dimension where private sector entities may now be subjected to the criminal offense of corruption, as is already the case for the public sector.
In conclusion, prevention and suppression of corruption become a global agenda that requires intentional actions to tackle with. To make it happen, laws must be made more efficient for enforcement. In addition, cooperation from public and private sectors, as well as civil society, is much needed. Particularly, private sector is a core entity to say no to giving so as to lessen corruption; if the giver refuses to give, the receiver will relatively decrease as well.