Thailand: Fight against Corruption

by Prof. Nualnoi Treerat¹

Corruption has been the serious problem in Thailand for many years. It has been widespread, deeply rooted, well-organized and tolerated. However, during the past five years, there was a clear attempt to fight against corruption. The paper aims to examine changes in environment through the political reform to combat corruption, review perception and experience of private sector on the issue of corruption in the public sector, and analyze the role and impact of social movement on the fight against corruption.

II. Political Reform

An attempt to reform the politics through the constitutional movement has occurred clearly since 1991. In the past, there were 15 constitutions in Thailand during 1932-1997. The draft of present constitution has passed by the parliament in October 1997. There are several key challenges to the new constitution.

2.1 New Constitution.

The new version of constitution was called ¡°people's charter¡± because this is the first constitution that people could participate during the process of drafting. This made the 16^th constitution completely different from the previous constitutions, which most Thai constitutions have been drafted by those close to the military juntas. The new constitution concerns the essence of the so-called 'social contract" between the state and the people. In 1996 a Constitution Drafting Assembly, consisting 99 members, was formed, one member was elected in each province, totally 76 members. Another 33 members were appointed from politicians and academics. Essential substance of the new charter lies in the promotion and protection of rights and liberties of the people, provision of public participation in the governance and inspecting the exercise of State power as well as improving a political structure to achieve more efficiency and stability. This provides new instruments for people to get control over the state.

The Constitutional Drafting Assembly took nearly 1 year to draft and to conduct the public hearing all around the country. It has been argued that the process of consultation with the public through the Constitution drafting was at least as important as the resulting document. Because the process of making the new constitution encourages people to participate to determine and protect their rights and liberties. In addition, the movement increase people's knowledge on the constitution, therefore, the constitution is not only the law that had been employed by the Parliament like in the past, but also the people can make use of the law too.

As noted in the statement of the former Prime Minister, Anand Panyarachun at the Foreign Correspondents Club of Thailand on August 27, 1997:

"This is the first time in the 65-year history of Thailand's democracy that the draft is being drawn up, not by the elite, not by the people in power, but it's being drawn up by layman... such a diverse group...such different conceptions and background¡±²

The new constitution creates the new way to `checks and balances the system'. This is achieved through a decentralisation of power from the central government to independent institutions of state. This, in turn, creates significant opportunities for public participation. It strengthens people's power in getting control over the state. These new independent institutions are:

1. Election Commission (EC). The Election Commission will control, arrange and organize the election of members of Parliament House, senators, members of local administrations and local assemblies. The institution aims to ensure a fair and clean public referendum. The commission is empowered to order re-counts of votes, annual election results, and call new elections. The election of senators during March - June 2000, in which some provinces have 4 senator elections due to electoral cheating.
2. The National Counter Corruption Commission (NCCC). The NCCC has replaced the former Counter Corruption Commission (CCC) with more powerful and different duties. The CCC was founded in 1976 to investigate the government official's corruption and was under supervision of the prime minister's office. But the main duty of NCCC is mainly to investigate the corruption problems against the MPs, senators, cabinet members, and high government officials, including those of independent government bodies and law courts. The Commissioners were appointed by the Senate. The office will have a free hand in its staffing, budgeting, and other aspects of its management permitted by law. As the NCCC is very important in dealing with the corruption directly, the NCCC will be discussed in details in other sub-section.
3. Parliamentary Ombudsmen (PO). The PO will consider and investigate people's complaints against government officials and employees of government organisations, state enterprises and local administrations.
4. The National Human Rights Commission (NHRC). The NHRC was set up to investigate and report acts or ommissions which have led to violations of human rights. This will help to promote human rights, according to the international treaties to which Thailand is a signatory, and compile an annual report.
5. The Administrative Court (AC). The AC will try cases arising from disputes among government agencies, local administrations and official involving the performance of a duty or failure to perform a duty. Ordinary citizens have the right to sue government agencies through the regular courts.
6. The Constitutional Court (CC). The CC will work on complains involving actions or law contradict provisions of the Constitution and on disputes regarding the power or duties of state organisations under the Constitution.
7. The Public Finance Audit Commission (PFAC). The PFAC has replaced the office of Auditor, which was under the supervision of the office of Prime Minister. The commissioners were appointed by the Senate.

These independent organisations have been founded to place these bodies beyond the control or influence of politicians or political parties. The nomination of members of the bodies will be made by neutral and well qualified selection committee and forwarded to the Senate for approval. This system allows to monitor the State's power. Said Anand Punyarachun:

"In the past, politicians could sin, commit wrong-doings, and they would go scot-free. We introduced a system of monitoring, a system of impeachment. We strengthened all the existing institutions and we created new ones, to make them more independent - not subservient to the government, but responsible to the Parliament.....We have converted the Senate from a rather ineffective law-making body, into a monitoring institution. Senators will not have the power to initiate legislation...but they will have much more power to monitor the performance of the government and the performance of the elected members of the House of Representaives."³

The Constitution also increases civil rights and civil liberties through the introduction of people's participation. There are several measures that allow people to have direct participation to the process of decision making of the State. In the past, the participation of people has only done through the election of the representative. These measures include:

1. Right to know. The people are entitled to access to information concerning the records of government agencies except when disclosure of such information will jeopardise national security, public safety, or interests protected by the law of any individual. However, this right was defined in detail by the Information Act, passed by the Parliament almost the same time as the approval of the Constitution. Under Section 59, individuals are entitled to receive information, explanations and reasons from government agencies, state enterprises or local administrative organisations before approving or carrying out projects or any activity which could affect the environment, health, quality of life or benefits of individuals and their communities.⁴ The law is said to be a revolution of the bureaucratic culture. As most government officials consider that it is their duty to protect state information. According to the law, bureaucrats will have to change the long-entrenched attitude to make them think that it's honorable, not degrading, to serve up the information to the public. However, as the Information Act was drafted and passed independently from the Constitution. The new Information Office was set up and under supervision of the Office of the Prime Minister that may allow the interference from the politicians. Details of the law and its practice during the past 2 years are discussed separately in other sub-section.
2. The Removal from Office. Member of the Houses of Representatives of not less than one-fourth of the total member of the existing members of the Houses or voters of not less than fifty-thousand in number have the right to lodge with the President of the Senate a complaint in order to request the Senate to remove the persons from office. Such persons are the prime minister, a cabinet members, an MP, a senator, a chief justice, or a ranking bureaucrat for corrupt conduct in office or for an unjustifiable increase in wealth.
3. Freedom of the Press. The government may not impose a ban on printing, newspaper publishing, radio or television broadcasting, except when it is imposed by a court judge corresponding to law or during the time when the country is in the state of war or armed conflict. There shall be an independent State agency having the duty to distribute the frequencies and supervise radio and television broadcasting. Such agency will be appointed by the Senate. In addition, officials or employees of media organisations, including those of state owned organisations, shall enjoy their liberties to present news and express their opinions under the constitutional restrictions without the mandate of any government agency, State agency, State enterprises or the owner of such businesses, providing that it is not contrary to their professional ethics.⁵

After the May 1992 incident, the public demanded for radio and television reform. This was a result of the struggle of reliable information during the protest against the unelected Prime Minister in May 1992. On the other hand, the print media that had been more freedom has earned a greater degree of people's acceptance from its defiant role during the crisis to function as a more reliable social `mirror' and has become a more independent channel for two-way communication. The government has begun to release the control over the media since the May 1992. The media reform is expected to increase the role of the media in policy advocacy. Thailand's first independent television channel began transmission on 1 July 1996.

In addition, the new Constitution also promotes the decentralisation policy. The Constitution focuses clearly on control and monitoring on the local administration by the local people. Empowerment of the people can be done through several measures, including:⁶

• A requirement for mechanisms to be enacted to ensure true independence for local administrations in terms of power, function, finance and taxing ability. The proportion of local budget in national budget is clearly stated in the new constitution. For example, in the fiscal year 2001 the local budget must account for, at least, 20 per cent of the national budget; the proportion must increase to 35 per cent in fiscal year 2006. This encourages the central government to reform and transfer `activity, money and official' to the local government.

• Election of members of local councils;
• The power of local residents to remove chief executives and members of local councils; and
• The power of local residents to propose a local ordinance, signed by 50 per cent of a local administrative region's residents, to be deliberated in the local legislative body.

2.2 Vote buying and dirty politics.

Money politics was argued to be the main root of corruption in Thailand. Under the new Constitution, the electoral system has aimed to reduce money politics, particularly vote-buying and the seeking of cabinet positions through money. The Secretary of the Constitution Drafting Assembly's drafting committee, Borwornsak Uwanno said during the period of drafting that

"We have to know why politicians invest in elections...Thai law is not like American Law, which has details that constrain the discretion of officials. But under Thai laws, full discretion has been given to cabinet ministers. So, that is the main cause of corruption. Politicians foresee that if they invest, for example, only 30 million baht in an election, they can get back more, even one billion baht (through investment). So they invest."⁷

The constitution attempts to combat vote buying through stronger monitoring and through the newly-instituted powers of the Election Commission to pronounce immediately on election fraud.

Although, we know that the vote-buying will result in unqualified politician gaining seat in the House of Representatives and thus the cabinet, the issues of vote-buying are complex because they tie to rural poverty, the patronage system, and the feudal attitudes. The vote-buying creates the so-called `political paradox' in Thailand.

The issue of the political paradox in Thailand is that a democratic system allows the rural majority to choose the government while the middle class who has less influenced on the composition of the house and cabinet, has more power to form an alliance to oust an elected government. Therefore, those who put the government into and those who end its life are not the same people. Moreover, these groups hold incompatible views of democracy.

For rural people, democracy is a mean to bring greater benefits and official attention to themselves and their villages. Voting in rural areas is not guided by political principles, policy issues, or what is perceived as the national interests mentioned above. Besides, voting decisions in rural Thailand have been conditioned initially by the relationships between patrons and clients. But for educated middle class, democracy is a form of legitimate rule to recruit honest and capable persons, of course, this is the western concept of democracy. Often, the government in favor of the middle class, has been named as `the government for the rich not for the poor'.

The political dilemma is, indeed, the mirror of the economic dilemma in Thai society. This leads to an increase in difficulty to reform the state as political stability is needed under the process of the reform.

Although the middle class has always voiced for more freedom and more democratic, they have never learnt how to solve the real problem of political paradox. The middle class should understand that democracy cannot survive as long as the huge socioeconomic gap between urban and rural areas or between the rich and the poor persists.

In sum, in the march towards political reform through the Thai Constitution reform, it has increased not only the degree of democratization, but also the degree of decentralization as well as the degree of participation of people on a democratic process. This gives right to more equitable distribution of political as well as economic power among the people.

2.3 Information Act.

Although it has been stated clearly in the constitution about the ¡°right to know¡±, the movement to receive such right has begun since 1991. The information act was approved by the Parliament one month ahead of the 1997 constitution. The law has been contributed to democratic administration in the following aspects⁸: According to the Official Information Act (OIA), information and state agency have been defined as follows:

¡°information means a material which communicates matters, facts data or anything, whether such communication is made by the nature of such material itself or through any means whatsoever and whether it is arrange in a form of a document, file, book, diagramme, map, drawing, photograph, film, visual or sound recording, or recording by a computer or any other method which can be displayed; official information means an information in possession or control of a State agency, whether it is the information relating to the operation of the State or the information relating to a private individual; State agency means a central administration, provincial administration, local administration, State enterprise, Government agency attached to the National Assembly, Court only in respect of the affair unassociated with the trial and adjudication of cases, professional supervisory organisation, independent agency of the State and such other agency as prescribed in the Ministerial Regulation; (OIA, 2540: section 4).

The main purposes of the OIA are transparency, public participation accountability and fairness.

• Transparency. It entitles the people to get access to the fact about the government's current affair.

• Participation. The public can monitor the way the government works, at both national and local levels.
• Accountability. With information about the state's jurisdiction, the public will be able to analyse and decide for themselves whether the state's undertakings are appropriate. The transparency of the government will prevent corruption and the state's abuse of power from taking place.

• Fairness. Knowing the scope of the state's jurisdiction will ensure the public of what to expect, therefore, they can protect their rights and liberties when dealing with the state.

Until August 2000, the 368 cases have been appealed. Most of the case concentrated in the group of society, public administration and law enforcement. Approximately 90 per cent of the appeal cases were desired to open up the information. However, it was taken 4-5 months on average for the process.

2.4 National Counter Corruption Commission

Thailand has had a Counter Corruption Commission since the early 1970s. However, with limited investigatory authority, no prosecutorial power, and under supervision of the Office of the Prime Minister, the CCC had been named as `paper tiger'. It has never succeeded with `big fish' case. Most of their works contributed to investigate the problems of bureaucrats' petty corruption. However, under the 1997 Constitution, the organization has been reformed and empowered. The organization is independent from the elected politician and the cabinet. Commissioners were appointed by the Senate. Scrutiny of politicians and officials by the NCCC can be initiated through one of four channels to obtain legal proof of corrupt behavior and unaccounted-for wealth:⁹

^"1. A motion by the opposition for a no-confidence debate against the prime minister and cabinet members for corrupt behavior or unaccounted-for wealth which automatically requires an NCCC investigation.
2. A demand made by one quarter of the total MPs,
3. A demand made by 50,000 eligible voters.
4. Demands made by persons sustaining damage as a consequence of corruption.."

In addition, the 1997 Constitution determines the anti-corruption measures to monitor the use of power of the politician. They include¹⁰

• Codes of ethics for political office holders and bureaucrats; and codes of ethics for MPs, senators, and members of House committees be compiled;
• MPs, senators and cabinet members forego access to concessions or contracts monopolistic in nature awarded by the government - the private interests of office holders and the interests of the state must not conflict during or beyond their terms in the office; and
• Public office holders and ranking bureaucrats declare their assets and liabilities, as well as, those belonging to their children, prior to assuming office, and after leaving office, by means of official audits.

III. Perception and experiences of business sector and household

3.1 Business sector

Faculty of Economics, Thai Chamber of Commerce University conducted the business environment and governance survey¹¹, aiming mainly to find constrains to business development, as well as the quality of public governance and services relating to corruption. The results of the survey, especially connecting to the perception and experience of business sector on corruption in the public sector, are summarized as follows:

1. Time spent in dealing with government officials. The results of the survey confirm that business enterprises in Thailand have experienced inefficiencies related from Thai bureaucratic red tape. Dealing with government officials about the application and interpretation of laws and regulations in Thailand is time consuming. From the survey results, on average senior managers have to spend 14 per cent of their management's time a year dealing with the issues. Regarding to the size of firms, it seems that the smaller sized the firm is, the more time it has to spend. Small sized firms on average spend 15 per cent, medium sized spend 13 per cent and large sized spend 12 per cent of the management time. While firms in other sectors such as construction, commerce and manufacturing spend their time less orderly. Foreign owned firms tend to spend more of their management's time than domestic owned firms (Table 1).

Table 1: Time spent in dealing with government officials

Size Small Medium Large	Time spent per year (%) 15.42 13.71 12.38
Industry Manufacturing Services Commerce Agriculture Mining Construction	12.71 17.29 13.44 11.25   0.50 14.81
Ownership Foreign Domestic	14.80 13.83
Source: Thailand Business Environment and Governance Survey