Fighting Corruption While Having Hands Tied: A Case Study of Thailand’s Public Sector Anti-Corruption Commission

Abstract

Grounded in 41 semi-structured interviews, this article examines the extent to which the complaints system under regulatory oversight of the Public Sector Anti-Corruption Commission (PACC) in Thailand has been effective for addressing corruption complaints. The present article revisits the theoretical arguments of the structural school and the reputational school over agency independence, deploying such arguments to analyze the way in which de facto independence of the anti-corruption agencies (ACAs) operating in a highly politicized environment can be protected. The analysis finds that a high level of legal independence is the best possible way to safeguard de facto independence, enhancing the overall effectiveness of the ACAs working in highly politicized countries. In addition, the empirical findings suggest that a low level of legal independence, a lack of prosecution power, inadequate qualified staffing, and the absence of meaningful public participation are the core factors contributing to the ineffectiveness of the PACC system.

Keywords

Corruption anti-corruption agencies complaints systems legal independence Thailand

Introduction

Corruption is a serious impediment to national development. It is the problem giving rise to an increased in poverty and inequality as well as the erosion of the rule of law (Gupta et al., 2002; Montinola, 2004; Rose-Ackerman, 1999). Corruption in Thailand is regarded as a chronic disease, having deep roots, continually adjusting to rapid social change (Vichit-Vadakan, 2011). This problem not just impedes Thailand’s development opportunities but also its democracy. Noting that Thailand has already undergone two military coups d’état within a space of less than a decade (i.e. in 2006 and in 2014), and ‘corruption’ was always used by the juntas as one of the mantras to justify the toppling of democratically elected governments (Sinpeng, 2014).

That said, it should be underlined that Thailand has a long history of struggling to curb corruption. It, in compliance with the United Nations Convention against Corruption (UNCAC), has two functioning anti-corruption agencies (ACAs), namely the National Anti-Corruption Commission (NACC) and the Public Sector Anti-Corruption Commission (PACC), dealing with corruption in the public sector at all levels. Nevertheless, unlike some countries (e.g. Nigeria) where unclear jurisdictional boundaries between multiple ACAs have caused infighting among them (see Bamidele et al., 2016), in Thailand, it is clear that netting the “big fish” (i.e. politicians and high-ranking public officials) falls within the purview of the NACC while catching the “small fish” (i.e. public officials of junior rank) rests with the PACC (Prateeppornnarong, 2018).

As the PACC’s main function is to address complaints about corruption, the effectiveness of its system is therefore pivotal not just to individual cases but also to the public sector as a whole, not least in retaining integrity in the public service. Notwithstanding, the unsuccessful attempts on the part of the PACC to resolve some complaint cases in the past inevitably brought the system into question. Taking the case of the Santika pub fire which caused 66 deaths on New Year’s Eve 2008, the PACC was prompt in trying to investigate the complaint about bribery over illegal building construction of the pub which compromised the building fire safety and partly led to the tragedy. Only after a few months, the investigation was discontinued; reportedly, owing to a lack of independence and resource constraints (Prateeppornnarong, 2018).

While there is already a rich accumulation of studies of the NACC system (see Chokprajakchat, 2017; Harding and Leyland, 2011; Quah, 2003), relatively little is known of the PACC system. The research undergirding this article, thus, aims to illuminate the working of the PACC system, answering to what extent has the PACC complaints system been effective for handling corruption complaints?

The contributions are as follows. This article briefly reviews the literature on ACAs, identifying the chief obstacles hampering success of many ACAs worldwide in delivering promising results. It also examines the development of Thailand’s ACAs with a view to highlighting key challenges to the entire anti-corruption system of the country. In addition, the present article revisits the theoretical arguments made by the structural school and the reputational school about agency independence, deploying such arguments to analyze the best possible way to safeguard de facto independence¹ of the ACAs operating in a highly politicized environment. The empirical findings documented here also case light on the core factors shaping the ineffectiveness of ACAs, some of which carry policy implications for other ACAs existing in highly politicized countries.

Anti-corruption agencies

Expectation versus reality

In the anti-corruption literature, Singapore’s Corrupt Practices Investigation Bureau (CPIB) and Hong Kong’s Independent Commission Against Corruption (ICAC) often receive favorable reviews. For many years, the CPIB’s handling of high-profile cases, such as the case of the former Director of Commercial Affairs Department in 1991 and that of the former Director of Central Narcotics Bureau in 2012, can arguably be seen as indicative of the effectiveness of its system (Quah, 2015). The ICAC system can also claim to be relatively effective as, only three years since its inception, 140 police officers associated with corruption syndicates have been brought to justice (Skidmore, 1996). In addition, there have been at least 21 officials prosecuted as a result of ICAC investigations in recent years (Scott, 2013).

By comparison, ACAs in several other places have apparently fallen short of expectations. There are a number of reasons to justify this. First, in some countries, “successful models” (e.g. Hong Kong’s ICAC) were instantly imitated without practical considerations about the particularities of political and cultural contexts of the countries (Mao et al., 2013). It is unsurprising, therefore, that the ACAs established with a view to emulating successful models have met with little success as a result. Second, the encouragement from international donors (e.g. the World Bank) to many developing countries to create an ACA came with unrealistic expectations on the part of the donors themselves, that is, as Pope and Vogl (2000: 2) noted, an ACA is expected to be “credible, transparent and fearless.” On this point, it is arguable that a balance between the demands of operating performance and an agency’s own capacity to accommodate those demands needs to be struck appropriately (Doig et al., 2007).

Third and finally, numerous ACAs that exist in unconsolidated democracies or under electoral authoritarian regimes were born out of governance crisis, coupled with international pressures. The governments of those defective democracies jumped on the anti-corruption bandwagon, subsequently created ACAs just to present the appearance that they were committed to fighting corruption which, in fact, only helped solidifying their political legitimacy. As a result, unlike Singapore where its leaders demonstrated strong political will to eradicate corruption (Ankamah and Khoda, 2018; Quah, 2015), political compromise played a crucial part in the design of ACAs operating in flawed democracies, the statutory arrangements of such ACAs are therefore likely to have some defects or loopholes, hindering them from delivering promising results (De Sousa, 2010; Isra et al., 2017; Uwanno, 1995).

Taking the case of Indonesia’s Corruption Eradication Commission (Komisi Permberantasan Korupsi (KPK)), the fact demonstrated that the KPK had been very effective between 2003 and 2011 as its investigations could secure a conviction rate of 100 percent during the aforementioned period. Notwithstanding, the enabling legislation of the KPK that allows the Indonesian President to suspend any members of the KPK charged with criminal offences and to dismiss any of them if the investigation leads to an indictment arguably gives room for the politicization of the KPK. In this respect, a general observation is that, since 2011, criminal charges against KPK members have been on the increase, while the effectiveness of the KPK system seems to be in decline (Butt, 2011; Jamil and Doktoralina, 2016).

In sum, curbing corruption takes time and patience. Success in anti-corruption does not depend solely on a single panacea, a variety of measures is required. More importantly, even though many ACAs are facing practical challenges, their roles in battling with corruption, in particular the handling of corruption cases, remain advantageous to anti-corruption campaigns.Instead of aiming criticism at the existing ACAs for their failure to live up to the expectation raised, a viable alternative to the problem should be that more effort being put into demanding the introduction of reforms to enable ACAs to overcome operational constraints.

Thailand’s ACAs: Development and reforms

Established in 1975, the Counter Corruption and Malfeasance Commission (CCMC) was the first proper ACA in Thailand. Owing to a lack of legal independence, the CCMC was highly politicized to the extent that its capability to fight corruption became to little avail. During the CCMC’s lifetime, neither influential politicians nor senior public officials were prosecuted as a result of its investigation, while most officials indicted could either go free or, at worst, receive a lenient punishment by means of string-pulling and influence peddling (Uwanno, 1995). In the aftermath of a major constitutional reform in 1997, the CCMC had been replaced with the NACC.

The NACC is much more powerful than its predecessor. Not only does it have the insulation provided by government, but it also possesses a wide range of statutory powers not available to the CCMC (i.e. investigative and prosecutorial powers) (Uwanno, 2013). Following the arrival of the NACC, members of the public could eventually witness influential politicians from different camps being brought to justice. Some of the most notorious cases investigated by the NACC were the case of the late Rakkiat Suktana, a former minister for public health, who was given a 15-year prison sentence for his corrupt practice in medicines procurement; the case of the late Sanan Kachornprasart, a former minister of interior, barred from taking political office for five years as a result of his false declaration of assets; and the recent case of Boonsong Teriyapirom, a former commerce minister, sentenced to 48 years’ imprisonment for fabricating government-to-government (G2G) rice contracts between Thailand and China² (Prateeppornnarong, 2018; McCargo, 2014; Pongsudhirak, 2003; Supreme Court Judgement no.178-179/2560, 2017).

It is suggested that when an agency proves capable of carrying out a task that arouses political concern, there is a propensity for such agency to be exerted political pressures (Gregory, 2015). This very premise is in accord with the case of the NACC as, in a similar vein to its predecessor, it has inevitably been politicized inasmuch as having been granted legal independence.

Under civilian rule, the politics of nominations usually play a big part in the politicization of the NACC. Within the Thai constitutional framework, the Senate serves as a non-partisan assembly for appointments and dismissals of members of independent watchdog bodies. It is well documented that, during the Thaksin Administration (2001–2006), the upper chamber “which is supposed to be politically unaffiliated, has become increasingly partisan in the government's favor” (Pongsudhirak, 2003: 277–278). The success of the then government in extending the influence over the upper house was ostensibly owing to illicit payments being made to individual senators; this very issue was also raised and debated at length in Parliament (Harding and Leyland, 2011; Leyland, 2007; Nelson, 2014). The appointments of Thaksin’s close allies and friends to the post in a number of independent watchdog bodies, the NACC included, could therefore be witnessed during which time.

Under military rule, the politicization of the NACC is unquestionable. There were a number of corruption cases allegedly committed by the people served in the military-installed government. One of the recent cases in the limelight involves the complaint against Prawit Wongsuwon, a deputy PM, about his false asset declaration. In this case, Prawit failed to inform the NACC of the existence of 22 luxury watches that he had been seen wearing. He then explained to the NACC, once the story was disclosed, that he had borrowed the watches from his friends and returned them all. After a few months of inquiries, the majority commissioners have voted to dismiss the complaint, reasoning that the deputy PM had no intention to make a false declaration (Bangkok Post, 2018). Notably, there has been a widespread speculation that since the coup in 2006, the entire anti-corruption regime has closely been associated themselves with the military and conservative elites, to protect their vested interests (Dressel and Tonsakulrungruang, 2019; McCargo, 2014).

Leaving aside of the issue of politicization, the NACC’s powerful appearance also brings with it another major issue for its complaints system, that is the efficiency with which the system resolves complaints cases. While high-profile cases are given priority, hundreds of less serious complaints are also lodged at the NACC every single year. Within a couple of years since its inception, the NACC system has started to face a tremendous backlog of complaints. Undoubtedly, a heavy caseload of the NACC brought about the failure of its system to work efficiently, leaving thousands of complaints unresolved until their statute of limitations expired (Prateeppornnarong, 2018).

In 2008, under the military-appointed Surayud government, the Executive Measures in Anti-Corruption Act (EMA) was enacted to pave the way for the creation of the PACC. Contrary to its ACA counterpart, the PACC does not enjoy full autonomy from the government. Structurally, the PACC consists of the executive board and an office of administration. The Board comprises six members (commissioners); five out of the six members were originally selected by the cabinet. However, since an amendment of the EMA in 2016, the selection has been carried out by an independent selection committee consisting of the President of the Supreme Court, the President of the Supreme Administrative Court, the President of the Constitutional Court, and the Chief Ombudsman as the selection committee.

In addition to the first five members, the EMA also specifies that the NACC secretary general shall be an ex-officio member of the PACC Board. One of the architects of the EMA explained that a tripartite working relationship linking the PACC with the NACC and the government was established to make sure that when independence of the PACC is undermined, the NACC can intervene (Interview 9, Member of the National Legislative Assembly of Thailand).³

Unlike the Board, the Office was originally affiliated to the Ministry of Justice, but is now overseen by the PM (Prateeppornnarong, 2018). The amended EMA also authorizes the PACC Board to be able to permit the secretary general to take charge of investigating on its behalf, if it thinks fit. The rationale for the reforms was that the PACC complaints system would be more efficient and effective.

Although the emergence of the PACC did not result from the law passed through a democratically elected legislature, the idea of creating another ACA affiliated to the executive branch, dealing with less serious cases has been around in Thailand for quite some time, given that the EMA bill was first drafted in 2001, securing cabinet approval in 2004; unfortunately, it had not been considered in Parliament at this point, due to the successful coup in 2006. However, the bill was eventually reintroduced and pushed through in 2008 by the same group of lawmakers that had helped to draft it at the outset (Thit-oon, 2012).

Independence of ACAs: Theoretical arguments

In recent years, there has been much debate in delegation scholarship about agency independence. Shaped by the theoretical arguments of the structural school and the reputational school, the central question of such debate is whether legal independence influences de facto independence of regulatory agencies (Tomic, 2018). Independence is also regarded as an integral element of ACAs (De Sousa, 2010; Doig, 1995), this article therefore revisits the above arguments with a view to analyzing the way in which de facto independence of the ACAs operating in highly politicized countries can possibly be best protected, enhancing the overall effectiveness of the complaints systems.

Distilled from the notions of bureaucratic control-related theories (see McCubbins et al., 1987; Moe, 1984), the structural school holds that there is an association between statutory design and agency conduct, implying that higher levels of legal independence give rise to higher de facto independence (Tomic, 2018) because legal independence insulates an agency from popular opinion and subsequent government interference (Teodoro and Pitcher, 2017). Add to this, according to the credibility thesis, that to increase the credibility of policy commitments some important powers should be delegated to independent regulatory agencies, showing that the government limits interference in regulatory matters (Majone, 1997). Devolving responsibility and power to an independent ACA can arguably build the credibility of anti-corruption policy as a result.

On the contrary, the reputational school argues, ‘organizations, just like individuals, seek support and acceptance from their networks of audiences’ (Busuioc and Lodge, 2016: 93), implies that an agency with a low level of legal independence may be able to sustain its own reputation among the audiences (e.g. the electorate) in order to increase the cost of political interference. Notably, it is also arguable that an agency with a high level of legal independence might not necessarily be independent de facto, especially if its leaders have no intention of capitalizing on this protective status (Tomic, 2018). In addition, the political appointments literature indicates that an agency is more inclined to be politicized, via appointments and dismissals of its leaders, when it secures higher levels of legal independence (Ennser-Jenenastik, 2015) because the role of an independent agency can heighten political concern (Gregory, 2015). If this is the case, an agency will be less capable of sustaining its de facto independence (Tomic, 2018).

Apparently, the empirical evidence from several studies on the independence of regulatory agencies portrays a mixed picture of the extent to which de facto independence and the overall effectiveness of such agencies have been protected by a high level of legal independence (see Guidi, 2015; Hayo and Voigt, 2007; Koop and Hanretty, 2018). Now, the question to be considered here is what is the best possible way to safeguard de facto independence of the ACAs operating in a highly politicized environment? Taking Thailand as a case, the experience of the NACC demonstrates that, through a number of ways such as the nomination and appointment process, politicization of an ACA with a high level of legal independence seems inevitable, but the other side of the coin is that the lessons of the CCMC also inform us that, an ACA with a low level of legal independence could hardly perform their duties effectively. The root cause of politicization of ACAs in many countries, particularly the developing ones, is arguably due to the existence of political patronage (Blunt et al., 2012; Phongpaichit and Piriyarangsan, 1996; Prateeppornnarong and Young, 2019)—a system which increases personalization of power, paving the way for the politicized environment (Slater, 2003). In a country with high politicization, the ACAs under political control are likely to succumb to governmental preferences (Uwanno, 2013), the anti-corruption systems therefore tend to collude rather than check the alleged officers who have the backing of the government (Meyer-Sahling and Mikkelsen, 2016). For these reasons, the premise that an agency with a low level of legal independence may be able to sustain its de facto independence via the reputational craft is arguably inapplicable to the ACAs working under a highly politicized environment.

Of course, ACAs attaining a high level of legal independence can still be subjected to politicization. In line with the structuralist perspective; however, a higher level of legal independence, at least, gives ACAs better insulation from political interference on the day-to-day operations of their systems. In other words, ACAs having a low level of legal independence are much higher exposed to direct interference in comparison to the ones having a high level of legal independence (Bamidele et al., 2016; Baniamin and Jamil, 2018 Uwanno, 1995).

As a result, while this article acknowledges that legal independence is not a cast-iron guarantee of de facto independence, it argues that, the best possible way to protect de facto independence of the ACAs working in highly politicized countries is to grant them a high level of legal independence.

Methodology

Examining the effectiveness of a complaints system requires penetrating insights; however, prior to the undertaking of this research, there is scant-evidence based literature on the PACC. As a result, a qualitative approach was adopted for this study to enrich our understanding of how the PACC system operates and to identify crucial factors contributing to the ineffectiveness of such system.

Field research was carried out between June and August 2017. Purposive and snowball sampling techniques were used for recruitment of research participants. In total, 41 people were recruited to take part in this research. The participants were comprised of 18 officers serving with the PACC (including the PACC members and officers), five complainants, 11 volunteer helpers (local people supporting the PACC on the ground), five legislators, two representatives from the Chamber of Commerce. These participants are seasoned stakeholders in the PACC complaints system. The complainants, for instance, have previously gone through every step of the system, while the legislators were also previously involved with drafting and considering the enabling legislation of the PACC.

A semi-structured interview approach was adopted for data collection. The interview was designed to include the following topics: broad generalities about anti-corruption in the public sector, the PACC’s remit and its performance, the PACC complaints system, the issues of the system and the approaches to the improvement of the system. Each interview was recorded verbatim. Before an interview, the participants were made aware of the fact that participation of this research was on a voluntary basis. They were ensured of anonymity and confidentiality. Afterwards, each participant was given an informed consent form to sign.

Thematic analysis was applied to analyze interview data (Braun and Clarke, 2006). The themes are not pre-determined but, given the nature of a semi-structured interview, it is inevitable that certain topics may be found in the data. For instance, the question of legal independence was an open one; however, the analysis of this question was made through the empirical data collected for this research.

Findings

The PACC complaints system: How it works

The PACC deals with corruption cases nationwide. It is able to receive a direct complaint and is capable of undertaking own-motion investigations, if it deems appropriate. The Board of the PACC can authorize the secretary general to initiate an investigation on its behalf (Prateeppornnarong, 2018). On the completion of investigation, the secretary general will submit an investigation report with findings and opinions to the Board. If the Board determines to substantiate the complaint, it needs to indicate whether the official found to have committed corruption has the case to answer for misconduct or gross misconduct and whether or not criminal prosecution should also be brought against him.

As regards disciplinary action, the Board will send the investigation report to the superior (a line manager) of the official concerned, the superior is legally binding to act on the PACC recommendations. In the case of criminal proceedings, the PACC does not have the power to bring the case to court in its own right. Instead, it needs to send the investigation report to the public prosecution office for further action. Unlike the NACC, the EMA stipulates that when the PACC is in disagreement with the responsible prosecutor over the prosecution of the alleged wrongdoer, the Attorney General shall be notified for decision-making, any decision made thereafter is definitive (Prateeppornnarong, 2018).

Core factors undermining the effectiveness of the PACC complaints system

A low level of legal independence

When it comes to the independence of the PACC, most PACC officers who participated in this research pointed out that the fact that the Office of the PACC has a low level of legal independence does not make the PACC system vulnerable to political interference. As one of them explained:

The Board [of the PACC] is now entirely independent of the government. Besides, the NACC secretary general is also sitting in it. So, there’s nothing to worry . . . People should bear in mind that the law enables the NACC to act as the guardian of the PACC system. In case of undue influence or interference, the secretary can simply notify the NACC Board to take the case into their own hands. (Interview 23, PACC officer)

On the other hand, most complainants reflected how a low level of legal independence can undermine de facto independence of the PACC system and its effectiveness. One of them shared the following experience:

. . .the system is crap, I can tell you! I made a complaint against the police in 2009. At first, I got a few phone calls from the PACC staff asking me about the case but after a year, no one has ever contacted me again, no investigation whatsoever, I totally felt let down. Even worse, the officer I complained against was still working there [the same local force] as if there was nothing wrong, so I reckon there was string-pulling, and that’s why I took the case to court myself. People just don’t know that the PACC is part of the government. I think, even though it deals with low-ranking officials, this doesn’t mean that the official being investigated can’t or won’t seek string-pulling. Don’t forget that in this country patronage is a huge problem, we’ve seen the situations where some senior officials tried to use their influence, via personal contacts in the government, to help their subordinates in exchange for the service in the future. (Interview 34, Complainant)

Some other research participants also saw the issue of independence from a different angle. One participant explained the following to illustrate how de facto independence of the Board of the PACC can be diminished in practicee: “the Board heavily relies on the Office to deal with cases from recording of cases to the gathering of evidence. [But] the Office is being controlled by the PM, so the big question is that who can be sure that the system will always run impartially and independently” (Interview 29, Representative, Thai Chamber of Commerce). Furthermore, and more importantly, one of the senior PACC officers accepted during an interview that, “ . . ., the NACC secretary general hardly get involved with the PACC. The link between the PACC and the NACC is merely a perfunctory effort” (Interview 1, PACC officer).

The above findings apparently throw light on key practical issues of the PACC system. First, political patronage, as a long-established feature in Thai society, is highlighted as one of the issues giving way to politicization of the system, undermining de facto independence and the effectiveness of the system. Politicization occurs in the PACC system via an asymmetric relationship between the Board and the Office of the PACC. Let it not be forgotten that while the Office of the PACC attains a low level of legal independence, it carries out quite a prominent role in the fact-finding process, leading to the situation where the Board’s decision-making depends primarily on the information gathered by the Office, leaving a potential loophole for string-pulling and influence peddling. More importantly, the formal working relationship between the NACC and the PACC does not help ensure de facto independence of the PACC system in reality as the fact shows that the NACC secretary general rarely engages in the system.

The big question now is that providing the Office of the PACC secured a high level of legal independence, would the entire PACC system be subjected to greater politicization? Considering Thailand’s political environment, the politicization of an independent PACC would therefore be reasonably probable. That said the PACC should still be structurally insulated from government because an anti-corruption system under direct control of the government can be worse affected by government interference compared to an independent one. In addition, given the PACC’s remit, the politicization of its system would be less than that of the NACC. More importantly, the evidence suggests that the politicization of independent watchdog bodies in Thailand will become a very serious issue when political contestability in the country is in dramatic decline (Mutebi, 2008).

The next question is, considering the PACC system handles corruption cases allegedly committed by low-ranking officials, does it need a high level of legal independence? In response to this, it should be emphasized that dealing with the alleged offenders who are of junior ranks does not necessarily mean the cases are petty ones. The study on the Thai police complaints system, for instance, demonstrated that some rank-and-file officers could manage to get away with punishment providing they have had the backing of senior officials having good contacts with influential political figures (Prateeppornnarong and Young, 2019). In this regard, a high level of legal independence is necessary for the PACC system.

While legal independence cannot ensure de facto independence and the effectiveness of the PACC system, this article argues that a high level of legal independence is essential to the system so as to safeguard it against Thailand’s highly politicized environment.

A lack of prosecution power

Previous studies (see, De Sousa, 2010; Kuris, 2015; Meagher, 2005) highlighted that there is a link between the effectiveness of dealing with complaints cases and the level of power equipped for an anti-corruption system, taking into account a sociopolitical context within which it operates. During the fieldwork, whether the PACC should have prosecutorial power was under considerable discussion.

Some PACC officers interviewed for this research pointed out that prosecution power may not necessarily be helpful for the PACC system. One officer suggested, for example, that, “I’m of the view that the PACC shouldn’t have the power to prosecute the accused, indeed, we should avoid such headache. The Office is still small in size, I suppose. We don’t have the expertise to fight the case in court, we don’t have enough resources to employ lawyers” (Interview 24, PACC officer). On the other hand, some other officers, together with the complainants, were of the view that the PACC should be allowed to take the case to court, if the need arises. One of the people supporting this view gave the following reasons:

My worry is that, without prosecutorial power, the case may not be handled straightforwardly, to be honest. We’ve recently arrested corrupt officials with exhibit on the scene, the PACC made a prosecution recommendation to the public prosecutor but he disagreed. I’m not trying to say that the prosecutor was not impartial but I just think that he made a mistake. Later, we made consultation to the Attorney General on this case and he agreed with his subordinate that no prosecution should be brought against the official concerned, and that’s the way it is, we’re not allowed by law to be in dispute with the prosecutor, so the case closed! (Interview 2, PACC officer)

I believe, in a country where both the public prosecution office and an ACA can exercise prosecution power, officers will be more inclined not to infringe anti-corruption law as string-pulling is difficult while the chance of being punished is high. (Interview 11, PACC officer)

Apparently, the line of reasoning of those officers who are not in favor of prosecution power is very much relevant to concern over the burden of management within the Office of the PACC, while the impression given by the people who are in favor of prosecution power is more of concern about the extent to which the case is handled effectively.

Corruption is a crime requiring a plan of action to be made beforehand.Would-be perpetrators are normally state officials; disciplinary and/or criminal charges pressed against them as a result of their corrupt practices can simply ruin their entire lives, not only serving a sentence but also seeing no future after a release from prison, at least no public agency would employ them. These people will more or less contemplate the potential consequences of committing corruption before doing so. As a result, this article argues that apart from the public prosecution office, authorizing an ACA prosecutorial power helps discourage public officials from seeking to break anti-corruption law as this approach increases the chance of the offenders being brough to justice (Asamoah and Ofosu-Mensah, 2018; Bamidele et al., 2016). This is a particularly important approach to deal with corruption in the countries where their traditional law enforcement agencies have long been tainted with the issues of political patronage (MacMillan, 2011; Prateeppornnarong and Young, 2019).

In Indonesia, for example, the KPK can exercise prosecution power which helped contribute to a conviction rate in court (MacMillan, 2011). In Thailand, the fact that the NACC possesses immense power also resulted in a number of successful investigations into corruption cases involved high-profile politicians and public officials (Prateeppornnarong, 2018). It must also be stressed that prior to the arrival of the PACC, when the public prosecutor decided not to go further with the case, the NACC could prosecute all cases regardless of the rank of the alleged corrupt officers. The rationale for authorizing the NACC prosecution power is to make sure that the balance of power between an ACA and the prosecutorial body can be struck properly. In a number of cases, the fact shows that the NACC had made the right decision to proceed with prosecution (Prateeppornnarong, 2018).⁴

Drawing from the findings, the article argues that the PACC should have prosecution power to not only deter potential perpetrators, but also to minimize the possibility of corrupt officers going free. Noting that the problem of resources and expertise should be addressed separately.

An inadequate number of qualified staffing

To investigate corruption effectively, an adequate number of qualified staff is of necessity. In Belgium, corruption cases are often closed as a result of inadequate staffing (Soreide, 2016), while in Nigeria, investigations into some major cases cannot be launched due to staffing constraints (Bamidele et al., 2016). Indeed, the PACC’s own experience on the case of the Santika pub fire is also indicative of the importance of sufficient manpower.

One of the PACC officers interviewed for this research indicated that, “[At one provincial office of the PACC] we’re now having only one admin [administrative] officer doing all kinds of things from receiving and recording of complaints, sending letters, doing telephone calls” (Interview 41, PACC officer). Another officer also claimed that, “Our provincial office handles cases from 8 cities but we have only 20 officers right now, even worse, we do have only one car at the moment, do you think all of this is enough? I can tell you that our team can do the filed investigation for one case at a time, what a shame!” (Interview 25, PACC officer).

During another interview, the issue of staff competencies was raised as another fundamental challenge to the effectiveness of the system. One of the officers made the following comments in relation to this issue:

. . . I think the most serious problem in terms of HRM [human resources management] has always been about staff competencies. A sizable proportion of staff we’re now employing lack the knowledge about law and regulations, they also don’t have investigative skills. The root cause of this is partly about cronyism. (Interview 38, PACC officer)

Furthermore, some other officers claimed that organizational cultures alien to the one within the PACC also add to the problems of human resources, posing a significant challenge to the system as well. One of the officers explained as follows:

I have to say, in the last couple of years, the government has tried to sort out the issue of manpower shortage. A transfer of staffs from other government agencies to the PACC was a key approach adopted. Although this helped in terms of easing the burden of the system but a new problem emerged, that is, most of these new staffs brought with them their former workplaces’ organizational cultures which, in my view, simply spoil our way of dealing with cases. What’s more, some of these people are still attached to their former forces and colleagues, so, sometimes, the investigations came under suspicion of string-pulling. (Interview 14, PACC officer)

Based on the above findings, it is apparent that a shortage of qualified staffing remains a serious issue affecting the overall effectiveness of the PACC system.

The absence of meaningful public participation

Dealing with corruption effectively does not rely on an ACA’s solo effort but rather the meaningful participation by different groups of people (Mungiu-Pippidi, 2013). Leaving aside the role of public and private organizations, a number of studies of corruption control (e.g. De Michele, 2001; Grimes, 2012) have underlined the importance of public participation in the fight against corruption.

Corruption, albeit, is viewed as an unacceptable practice by a vast majority of the public in any democratic society, galvanizing people into taking part in anti-corruption campaign is not easy. Unsurprisingly, to date, there are very few countries that public participation can bring about success in curbing corruption (Mungiu-Pippidi, 2013). That said the lessons from South Korea, for instance, demonstrate that the bottom-up participation of citizens helped initiate collective action that is conducive to anti-corruption; thus, it is the goal that we should pursue.

In South Korea, several campaigns aimed to defeat corrupt politicians and public officials, such as the Campaign for Fair and Clean Election etc. had substantially contributed to the struggle against corruption (Kalinowski, 2016). Collectively, people can make their voice heard and demand remedies to the problem they face. In Mexico, the evidence shows that the indigenous peoples of some local provinces “are capable of acting, raising their voice and, ultimately, demanding accountability from providers of public services through communitarian means” (Camargo and Rivera, 2016: 205). In an anti-corruption campaign, people can do many things that are helpful for an ACA. They can be informants on the ground; also, they can help educate people in the same community and raise public awareness of how corruption destroys society.

From the evidence of this research, the Office of the PACC has already engaged a sizeable proportion of local people in many different provinces in its system. However, it was found that there is a lack of strategies to secure the participation in active and effective fashions. As one of the interviewees explained, “Some years ago, the Office of the PACC has given some of us, myself included, training in anti-corruption but we’ve never been involved with their jobs” (Interview 40, Volunteer helper). In similar vein, another participant also pointed out, “. . .I honestly feel that people’s participation with the PACC remains superficial. I think the involvement of the people with the PACC is pretty much on a case-by-case basis. There seems to be no long-term plan. In short, it [the PACC] has to do much more to get people involved with its jobs” (Interview 15, Volunteer helper).

Another crucial point vis-à-vis public participation is the scrapping of section 33 in the original EMA (as of 2008) which allowed the PACC to appoint members of the public to be a panelist in the investigating panel. One of the PACC officers pointed out why this has happened as follows, “Involving members of the public in the process requires travelling and allowance, all of this actually slows the whole process. Moreover, ordinary people are not knowledgeable about regulations, so they may not be helpful at this stage. In the past, only few cases that we have appointed ordinary people to be part of the investigating panel” (Interview 5, PACC officer). Nonetheless, some complainants have aired opposite views on this issue. One of them said, for example, “ I think, sometimes, the involvement of the common people means a lot in the investigation. The people involved can be the ones that help provide useful information. Also, it helps ensure transparency in the PACC system” (Interview 35, Complainant).

It is apparent from the findings that meaningful public participation is absent from the PACC complaints system. Even worse, the findings also indicate a retrogressive change in the EMA which inhibits formal participation of people in the PACC system. The change is based on the premise that involving members of the public was a burden to the PACC; nevertheless, this article argues that the PACC failed to take into account a contribution that public participation can make to the system as a whole. First, public participation in the handling of complaints improves public confidence in the PACC system. Second, public participation can help setting an agency on its feet. Third, public participation helps pool ideas and expertise of the people involved which will be of benefit to the investigation. To investigate cases related to public procurement, for instance, the experience of distributors selling products to government agencies is undeniably important. In this respect, a lack of meaningful public participation arguably puts practical constraints on the PACC system to deal with corruption effectively.

Conclusion

An ACA is not a silver bullet or a quick fix for endemic corruption but its role in running a complaints system, dealing with corruption cases, can prove to be helpful to anti-corruption campaigns. An effective system of handling corruption complaints not only helps to get rid of corrupt people but also sends a clear signal to would-be offenders that, when detected, the costs of corruption far outweigh the benefits, deterring them from performing corrupt acts.

Of course, several ACAs worldwide are being engulfed by many different issues, hindering them from delivering promising results. In countries where the rule of law is not always guaranteed, the politicization of ACAs seems to be the biggest issue. While in many countries, there is also the issue of insufficient resources for ACAs. For Thailand, the effectiveness of ACAs will not only be advantageous to its economic and social development, but also the resilience of its democracy. Notwithstanding, the findings of this research suggest that the PACC complaints system has not been effective enough. The PACC is apparently performing its duties while having its hands tied.

While the findings illuminate how the PACC complaints system works, they also highlight the reason as to why such system needs to be protected with a high level of legal independence, supporting theoretical constructs of the structural school. Though the politicization of the PACC is an inescapable fact, a high level of legal independence is found to offer the best possible protection of its complaints system as it insulates the system from direct political interference, enhancing its overall effectiveness. In addition, the effectiveness of the system can also be strengthened by authorizing the PACC to have prosecutorial power, investing more resources into the system as well as promoting effective public participation.

The empirical evidence in this article not only carries policy implications for Thailand but also has wider implications for other countries in that it suggests that the creation of multiple ACAs, each with a clear mandate, in a single country may be an alternative approach for optimizing the efficiency of the entire anti-corruption regime. But for this approach to work in practice, the arrangements for each ACA should be supportive of its statutory duties, and should also be favorable to the handling of corruption cases; otherwise, the presence of ACAs may simply be futile.

Footnotes

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was sponsored by the Graduate School of Public Administration, National Institute of Development Administration (NIDA), Thailand.

ORCID iD

Dhiyathad Prateeppornnarong

Notes

Author biography

Dhiyathad Prateeppornnarong, PhD, an is Assistant Professor of Public Administration at the Graduate School of Public Administration (GSPA), National Institute of Development Administration (NIDA), Thailand. His main research interests are related to good governance, anti-corruption, independent regulatory agencies, criminal justice issues, policing, etc. His most recent work has been published in Policing and Society: An International Journal of Research and Policy.

References

Ankamah

Khoda

(2018) Political will and government anti-corruption efforts: What does the evidence say. Public Administration and Development 38(1): 3–14.

Asamoah

Ofosu-Mensah

(2018) Fruitlessness of anti-corruption agencies: Lessons from the Commission on Human Rights and Administrative Justice in Ghana. Journal of Asian and African Studies 53(7): 987–1001.

Bangkok Post (2018) NACC clears Prawit of luxury watch assets scandal. Available at: https://www.bangkokpost.com/thailand/politics/1601718/nacc-clears-prawit-of-luxury-watch-assets-scandal (accessed 20 November 2019).

Bamidele

Olaniyan

Ayodele

(2016) Culture, corruption, and anticorruption struggles in Nigeria. Journal of Developing Societies 33(2): 103–129.

Baniamin

Jamil

(2018) Dynamics of corruption and citizens’ trust in anti- corruption agencies in three South Asian countries. Public Organization Review 18(3): 381–398.

Blunt

Turner

Lindroth

(2012) Patronage’s progress in post-Soeharto Indonesia. Public Administration and Development 32(1): 64–81.

Braun

Clarke

(2006) Using thematic analysis in psychology. Qualitative Research in Psychology 3(2): 77–101.

Busuioc

Lodge

(2016) Reputation and accountability relationships: Managing accountability expectations through reputation. Public Administration Review 77(1): 91–100.

Butt

(2011) Anti-corruption reform in Indonesia: An obituary?’ Bulletin of Indonesia Economic Studies 47(3): 381–394.

10.

Camargo

Rivera

(2016) Old regime habits die hard: Clientism, patronage and the challenges to overcoming corruption in post-authoritarian Mexico. In: Torsello

(ed.) Corruption in Public Administration: An Ethnographic Approach. Cheltenham: Edward Elgar Publishing, pp.186–210.

11.

Chokprajakchat

(2017) Whistleblowing in Thailand: Anti-corruption policy in Thailand and a whistleblower protection measure. In: Apaza

Yongjin

(eds) Whistleblowing in the World: Government Policy, Mass Media and The Law. London, UK: Palgrave Macmillan, pp. 37–58.

12.

De Michele

(2001) The role of the anti-corruption office in Argentina. The Journal of Public Inquiry 17–22.

13.

De Sousa

(2010). Anti-corruption agencies: Between empowerment and irrelevance. Crime, Law and Social Change 53(1): 5–22.

14.

Doig

(1995) Good government and sustainable anti-corruption strategies: A role for independent anti-corruption agencies. Public Administration and Development 15(2): 151–165.

15.

Doig

Watt

Williams

(2007) Why do developing country anti-corruption commissions fail to deal with corruption? Understanding the three dilemmas of organisational development, performance expectation, and donor and government cycles. Public Administration and Development 27(3): 251–259.

16.

Dressel

Tongsakulrungruang

(2019) Coloured judgements? The work of the Thai Constitutional Court, 1998-2016. Journal of Contemporary Asia 49(1): 1–23.

17.

Ennser-Jedenastik

(2015) The politicization of regulatory agencies: Between partisan influence and formal independence. Journal of Public Administration Research and Theory 26(3): 507–518.

18.

Gregory

(2015) Political independence, operational impartiality, and the effectiveness of anti-corruption agencies. Asian Education and Development Studies 4(1): 125–142.

19.

Grimes

(2012) The contingencies of societal accountability: Examining the link between civil society and good government. Studies in Comparative International Development 48(4): 380–402.

20.

Guidi

(2015) The impact of independence on regulatory outcomes: The case of EU competition policy. JCMS: Journal of Common Market Studies 53: 1195–1213.

21.

Gupta

Davoodi

Alonso-Terme

(2002) Does corruption affect income inequality and poverty. Economics of Governance 3: 23–45.

22.

Harding

Leyland

(2011) The Constitutional System of Thailand: A Contextual Analysis. Oxford: Hart Publishing.

23.

Hayo

Voigt

(2007) Explaining de facto judicial independence. International Review of Law and Economics 27(3): 269–290.

24.

Isra

Yuliandri Amsari

, et al. (2017) Obstruction of justice in the effort to eradicate corruption in Indonesia. International Journal of Law, Crime and Justice 51: 72–83.

25.

Jamil

Doktoralina

(2016) The save KPK movement: A framing analysis of coverage in Indonesian news media surrounding the KPK and police dispute. Mediterranean Journal of Social Sciences 7(3): 229–237.

26.

Kalinowski

(2016) Trends and mechanisms of corruption in South Korea. The Pacific Review 29(4): 625–645.

27.

Koop

Hanretty

(2018) Political independence, accountability, and the quality of regulatory decision-making. Comparative Political Studies 51(1): 38–75.

28.

Kuris

(2015) Watchdogs or guard dogs: Do anti-corruption agencies need strong teeth?’ Policy and Society 34(2): 125-135.

29.

Leyland

(2007) Thailand’s constitutional watchdogs: Dobermans, bloodhounds or lapdogs? Journal of Comparative Law 2: 151–176.

30.

MacMillan

(2011) Reformasi and public corruption: Why Indonesia’s anti-corruption agency strategy should be reformed to effectively combat public corruption. Emory International Law Review 25: 587–630.

31.

Majone

(1997) Independent agencies and the delegation problem: Theoretical and normative dimensions. In: Bernard

Vught

(eds) Political Institutions and Public Policy. Dordrecht: Kluwer Academic Publishers, pp. 139–156.

32.

Mao

Wong

C-S

Peng

(2013) Breaking institutionalized corruption: Is the experience of the Hong Kong Independent Commission Against Corruption generalizable. Asia Pacific Journal of Management 30(4): 1115–1124.

33.

Meagher

(2005) Anti-corruption agencies: Rhetoric versus reality. The Journal of Policy Reform 8(1): 69–103.

34.

Meyer-Sahling

J-H

Mikkelsen

(2016) Civil service laws, merit, politicization, and corruption: The perspective of public officials from five East European countries. Public Administration 94(4): 1105–1123.

35.

McCargo

(2014) Competing notions of judicialization in Thailand. Contemporary Southeast Asia 36(3): 417–441.

36.

McCubbins

Noll

Weingast

(1987) Administrative procedures as instruments of political control. Journal of Law, Economic, & Organization 3: 243–277.

37.

Moe

(1984) The new economic of organization. American Journal of Political Science 28: 739–777.

38.

Montinola

(2004) Corruption, distrust, and the deterioration of the rule of law. In: Hardin

(ed) Distrust. New York: Russell Sage Foundation, pp. 298–324.

39.

Mungiu-Pippidi

(2013) Controlling corruption through collective action. Journal of Democracy 24(1): 101–115.

40.

Mutebi

(2008) Explaining the failure of Thailand’s anti-corruption regime. Development and Change 39(1): 147–171.

41.

Nelson

(2014) Constitutional contestation over Thailand’s Senate, 1997 to 2014. Contemporary Southeast Asia 36(1): 51–76.

42.

Prateeppornnarong

(2018) The PACC’s anti-corruption system. Bangkok: GSPA, NIDA.

43.

Pongsudhirak

(2003) Thailand: Democratic authoritarianism. Southeast Asian Affairs 277–290.

44.

Pope

Vogl

(2000) Making anticorruption agencies more effective. Finance and Development: A Quarterly Magazine of the IMF 37: 6–9.

45.

Phongpaichit

Piriyarangsan

(1996) Corruption and democracy in Thailand. Chiang Mai: Silkworm Books.

46.

Prateeppornnarong

Young

(2019) A critique of the internal complaints system of the Thai police. Policing and Society 29(1): 18–35.

47.

Quah

JST

(2003) Causes and consequences of corruption in Southeast Asia: A comparative analysis of Indonesia, the Philippines and Thailand. Asian Journal of Public Administration 25(2): 235–266.

48.

Quah

JST

(2015) Singapore’s corrupt practices investigation. Asian Education and Development Studies 4(1): 76–100.

49.

Rose-Ackerman

(1999) Corruption and Government: Causes, Consequences, and Reform. Cambridge: Cambridge University Press.

50.

Scott

(2013) Institutional design and corruption prevention in Hong Kong. Journal of Contemporary China 22(79): 77–92.

51.

Skidmore

(1996) Promise and peril in combating corruption: Hong Kong’s ICAC. The Annals of the American Academy of Political and Social Science 547: 118–130.

52.

Sinpeng

(2014) Corruption, morality, and the politics of reform in Thailand. Asian Politics and Policy 6(4): 523–538.

53.

Slater

(2003) Iron cage in an iron fist: Authoritarian institutions and the personalization of power in Malaysia. Comparative Politics 36(1): 81–101.

54.

Soreide

(2016) Corruption and Criminal Justice. Cheltenham: Edward Elgar Publishing.

55.

Supreme Court Judgement [Thailand] (2017), no. 211/2560.

56.

Teodoro

Pitcher

(2017) Contingent technocracy: Bureaucratic independence in developing countries. Journal of Public Policy 37: 401–429.

57.

Thit-oon

(2012) Structure, Functions and Responsibilities of the Public Sector Anti- Corruption Commission under the Executive Measures in Anti-Corruption Act B.E. 2551. [Unpublished LLM Thesis] Bangkok: Chulalongkorn University.

58.

Tomic

(2018) Legal independence vs. leaders’ reputation: Exploring drivers of ethics commissions’ conduct in new democracies. Public Administration 96(3): 544–560.

59.

Uwanno

(1995) Impeachment. Bangkok: TRF.

60.

Uwanno

(2013) Depoliticising key institutions for combatting corruption: The new Thai constitution. In: Larmour

Wolanin

(eds) Corruption and Anti-corruption. Canberra: Australian National University Press, pp. 177–203.

61.

Vichit-Vadakan

(2011) Public ethics and corruption in Thailand. In: Berman

(ed.) Public Administration in Southeast Asia: Thailand, Philippines, Malaysia, Hong Kong and Macao. Boca Rotan: CRC Press, pp. 79–94.