วารสารวิชาการ ป.ป.ช. ปีที่ 9 ฉบับที่ 2

วารสารวิชาการISSN1906-2087 ป.ป.ช. NACC Journal ปีที่ 9 ฉบบั ท่ี 2 (กรกฎาคม - ธันวาคม 2559) บทความพเิ ศษ Special Articles บทความทางวิชาการ Anti-Corruption Articles ปริทัศน์หนงั สอื Book Review ส�านกั งานคณะกรรมการปอ้ งกันและปราบปรามการทจุ ริตแห่งชาติ

วารสารวชิ าการ ป.ป.ช. NACC Journal ISSN 1906-2087 ปีที่ 9 ฉบับท่ี 2 (กรกฎาคม - ธนั วาคม 2559) เจา้ ของ ท่ีปรกึ ษา ส�ำนกั งาน ป.ป.ช. ศาสตราจารย์ ดร. เมธี ครองแก้ว เลขท่ี 361 ถนนนนทบรุ ี ต�ำบลทา่ ทราย สถาบันบัณฑิตพัฒนบริหารศาสตร์ อำ� เภอเมืองนนทบรุ ี จังหวัดนนทบุรี 11000 ผขู้ ัดเกลาภาษาองั กฤษ โทรศพั ท์ 0 2528 4800 ตอ่ 5814 Dr. William Wyn Ellis โทรสาร 0 2528 4800 ต่อ 5814 United Nations ESCAP E-mail: [email protected] วัตถปุ ระสงค์ Website: http://www.nacc.go.th n เพื่อเป็นแหล่งรวบรวมความรู้และเผยแพร่ บรรณาธิการ รองศาสตราจารย์ ดร. สิรลิ กั ษณา คอมนั ตร์ ผลงานวิจัยและผลงานทางวิชาการอื่น ๆ ด้าน ส�ำนักงาน ป.ป.ช. การป้องกันและปราบปรามการทุจริต กองบรรณาธกิ าร n เพ่ือสนับสนุนการใช้ประโยชน์จากผลงานวิจัย รองศาสตราจารย์ ดร. โกวทิ ย์ กงั สนันท์ ผลงานวิชาการ และการสร้างความตระหนัก สถาบนั บัณฑติ พฒั นบริหารศาสตร์ ร่วมกันในการตอ่ ตา้ นการทุจรติ ดร. ณัฐวัฒน์ อรยิ ธ์ ัชโภคิน n เพ่ือส่งเสริมเครือข่ายความร่วมมือและ ศนู ยพ์ ัฒนานวัตกรรมตอ่ ตา้ นคอรร์ ปั ชนั ประสานงานในการบรกิ ารจดั การขอ้ มลู งานวจิ ยั ผชู้ ว่ ยศาสตราจารย์ ดร. ดารารตั น์ อานนั ทนะสวุ งศ์ ดา้ นการปอ้ งกนั และปราบปรามการทจุ รติ ระหวา่ ง สถาบนั บัณฑิตพฒั นบรหิ ารศาสตร์ หนว่ ยงานและสถาบันวิจยั ต่าง ๆ ดร. อรพนิ ท์ สพโชคชัย n เพื่อให้มีการแลกเปล่ียนข้อมูลข่าวสารและ นกั วิชาการอิสระ เอกสารสิ่งตีพิมพ์ต่าง ๆ กับหน่วยงานและ รองศาสตราจารย์ ดร. อัจนา ไวความดี เครอื ขา่ ยทเ่ี กยี่ วข้อง นกั วชิ าการอสิ ระ ก�ำ หนดพิมพ์เผยแพร่ กองการจดั การ ปีละ 2 ครงั้ ดงั น้ี ฉันทช์ นก เจนณรงค์ ฉบับท่ี 1 มกราคม – มิถุนายน พชั รี มนี สขุ ฉบบั ที่ 2 กรกฎาคม – ธนั วาคม ศักดนิ ันท์ คณุ เอนก เสาวณยี ์ ทพิ อตุ อนันญา แมน้ โชติ เนื้อหา/ขอ้ ความในวารสารนเี้ ปน็ ความคิดเหน็ ของผู้เขยี น มใิ ช่ของส�ำ นกั งานคณะกรรมการปอ้ งกันและปราบปรามการทจุ รติ แหง่ ชาติ

NACC Journal ISSN 1906 – 2087 Vol 9 No. 2 (July - December, 2016) Publisher Advisory Office of the National Anti-Corruption Medhi Krongkaew Commission 361 Nonthaburi Road English Language Editor Amphur Muangnonthaburi William Wyn Ellis Nonthaburi 11000 Thailand Tel: 66 2528 4800 Ext. 5814 Objectives Fax: 66 2528 4800 Ext. 5814 n To serve as a knowledge center for E-mail: [email protected] Website: http://www.nacc.go.th disseminating research findings and other academic works on corruption prevention Editor and suppression. Sirilaksana Khoman n To encourage the use of the research find- ing and academic works and to enhance Editorial Board public awareness to collectively counter Kowit Kangsanan corruption. Nattawat Aritatphokin n To promote networking and cooperation Dararatt Anantanasuwong among academic and technical agencies Orapin Sopchokchai on countering corruption among the Atchana Waiquamdee agencies and research institutions. n To promote the exchange of information Managerial Board and documents among relative agencies Chanchanoke Chennarong and networks. Pacharee Meensuk Sakdinan Khunanek Bi-annual Publication Saowanee Thip-ut No.1 January – June Ananya Manchot No.2 July – December Views expressed in the published articles in this Journal exclusively belong to the authors and do not necessarily reflect the official position of the NACC

Contents Part I: Special Articles 2 14 The Power and Perils of the Nine Anti-Corruption Commissioners in Thailand Medhi Krongkaew Touching the Tiger's Tail: Going after Political Corruption Juhani Grossmann Part II: Anti-Corruption Articles Cleaning House in Paradise – Fighting Corruption Using Integrity 22 Diagnostics in the New Democracy in Bhutan Tay Keong Tan NACC Integrity and Transparency Assessment 34 Dararatt Anantanasuwong Early Public Sector Reforms to Fight Corruption in Thailand: Institutional 43 Dilemmas and Challenges Kowit Kangsanan Public Information Disclosure: Thailand’s Best Preventive Medicine 69 for Corruption? Duenden Nikhomborirak Reducing Corruption Risks in Public Private Partnership (PPP): 77 Lessons Learned for Thailand Sutthi Suntharanurak Economic Analysis of Article 157 of the Thai Criminal Code 94 Thongyai Iyavarakul Part III: Book Reviews นติ เิ ศรษฐศาสตร์ ว่าดว้ ยการตรวจสอบบัญชีทรพั ยส์ นิ ของ ป.ป.ช. โดย วรวิทย์ สขุ บุญ 112 วจิ ารณโ์ ดย พศิ ษิ ฐ์ ลีลาวชิโรภาส อจั นา ไวความดี นิตเิ ศรษฐศาสตร์ วา่ ดว้ ยการเปลย่ี นแปลงกฎหมายต่อต้านการทจุ รติ โดย ศิริรัตน์ วสุวตั 118 ประเสรฐิ ศกั ดิ์ กุมภีพงษ์ วจิ ารณ์โดย บรรเจดิ สงิ คะเนติ อภสิ ทิ ธิ์ เวชชาชวี ะ

บทบรรณาธิการ From the Editor-in-Chief This volume continues the theme of fighting corruption at its root causes. Most of the articles in this volume are selected from papers presented at the Third Conference on Evidence-Based Anti-corruption Policies (CEBAP3) organized by Thailand’s National Anti-Corruption Commission (NACC) in collaboration with the World Bank, and with the support of Transparency International Thailand in June 2015. The theme of the conference was “Combating Organized Corruption” -- the most complex and pernicious form of corruption, involving high-level masterminds, often in government, business and industry, who often shield themselves and emerge unscathed from investigation and prosecution. The top echelon might operate a ‘hub and spokes’ structure, and escape from being directly implicated, without testimony and a physical trail of evidence. Thus the importance of preventive measures and a transparent system. Short special articles by Medhi Krongkaew and Juhani Grossman highlight the difficulties of fighting corruption in the capacity of Commissioner where backlash is common in the case of the former, and as part of civil society in the case of the latter. To build the anti-corruption infrastructure, integrity diagnostics are useful, and Tay Keong Tan discusses how these tools help fight corruption in Bhutan. Dararatt Anantanasuwong outlines the development of NACC’s Integrity and Transparency Assessment to induce bestpractices in countering corruption. The institutional constraints are examined by Kowit Kangsanan who advocates key public sector reforms in order to strengthen immunity against high-level corruption. Disclosure of public information is strongly proposed to shine a spotlight on all public sector dealings, particularly in the area of procurement, but Duenden Nikhomborirak's analysis of Thailand's finds large discrepancies between legal requirements for disclosure and actual practice. Progress has been made in using Public Private Partnership in Thailand with the objective of reducing corruption, and Sutthi Suntharanurak discusses some lessons learned. The widely-used Article 157 of the Thai Criminal Code, which lumps corruption and malfeasance together, is dissected by Thongyai Iyavarakul using economic principles to analyze its efficiency and effectiveness in fighting corruption. Organized corruption is indeed an insidious threat that needs to be tackled on all fronts. Traditional public sector management needs to be supplemented with more innovative transparency and accountability mechanisms, as well as wider engagement of the international community, the domestic private sector, the financial sector, civil society and professional groups. This Volume contributes to the on-going discussion of how to build a strong and effective anti-corruption infrastructure. Sirilaksana Khoman

1ตอนที่ บทความพิเศษ Special Articles

2 วารสารวิชาการ ป.ป.ช. The Power and Perils of the Nine Anti-Corruption Commissioners in Thailand* Medhi Krongkaew I 1. Introduction competing political groups), the NACC had gone through a series of violent and disruptive Ask anyone who has come under political protests and demonstrations that investigation by the National Anti-Corruption portend real and serious physical harms to Commission (NACC) of Thailand and you the nine NACC commissioners. At least one will get a sense of anxiety, even fear, from grenade was thrown into the NACC head these people. Not that the National office, and one into a commissioner’s Anti-Corruption Commissioners are a house. And all commissioners, in various bunch of fierce and uncaring inquisitors times throughout their nine-year terms, had who relish on causing fear and anxiety to suffered from several verbal and symbolic their “clients”, but it is because the Organic abuses. Act on the Suppression and Prevention of The apparent contrast between the Corruption which has been in existence power and perils of the NACC Commissioners since 1999 has been rigorously enforced by is a dichotomy of the situations surrounding the past and (presumably) present anti- the role and duties of the NACC that may corruption commissioners. In the past 9 puzzle many observers. It is the main years since the third Commission took purpose of this paper, therefore, to explain office, five former prime ministers of the nature of this contrast. It will answer Thailand, twelve former ministers, five four basic questions regarding the NACC: permanent secretaries, six director generals, (1) What are the reasons or rationale for the one Chief of the Police Force, and many establishment of this Commission in lesser public officials have been indicted or Thailand; (2) What are the main duties and fallen under to the investigation power of functions of this organisation; (3) What are the NACC based on this 1999 Anti-Corruption some of the major outcomes or consequences Law. But while the current political and of the decisions or operations of the NACC; administrative atmosphere is relatively and (4) What are some of the dangers faced relaxed and calm in the past two years (after by the nine NACC Commissioners in carrying the seizure of power by the Thai military to out their jobs. The paper ends with an prevent possible bloodshed between two * Paper presented at the Conference on The Fight Against Corruption and Impunity in 2016 and Beyond organised by the College of Law, Florida International University in Miami, FL on June 24, 2016. I Professor of Economics, Graduate School of Development Economics, National Institute of Development Administration (NIDA), Bangkok, Thailand; and former Commissioner in the National Anti-Corruption Commission of Thailand (NACC).

ปีท่ี 9 ฉบบั ที่ 2 (กรกฎาคม - ธันวาคม 2559) 3 assessment on future prospects of this especially if the government party is owned Commission and its nine commissioners. by a single individual or a single family. Through majority control in the parliament, 2. The Rationale the prime minister and his cabinet can One of the first and most frequently- conceive any populist policy that can asked questions about this national further strengthen the political position of anti-corruption commission is: what are the the party and the government in the new reasons or rationale for the establishment of election. But while the political leaders are this public, anti-corruption organisation? having their free hands in deciding what It is clear that many developed countries policies they want, the state officials who which rank very high in the transparency carry out or implement these policies may scale for their lack of corruption, such as be found to take advantage of these policies New Zealand, Denmark, Norway, Sweden, such as through procurement practices, and Japan, do not have a public organisation kickbacks, influence peddling, or other set up specifically for the purpose of kinds of corruption. Traditionally, the Thai combating corruption in the country. judiciary is passive in its response to political Corruption, if and when it occurs, is a and administrative developments, and, criminal offence and is regularly handled therefore, is not enthusiastic or effective in by the police, the public prosecutors, and its role as a mediator in political and the courts. Whereas many developing coun- administrative disputes. All these point to a tries like Thailand, all these public organ- need to have a few special, independent isations do exist, but why is it still necessary organisations that can be more effective in that a special organisation dedicated to the undertaking anti-corruption activities and fight against corruption is needed? providing checks and balances functions A simple answer to the above among the three traditional branch of question is that there is a systemic failure in government. The National Anti-Corruption the operations of one or all of the above Commission (NACC) is one of these public agencies such that one or all of these independent organisations, and arguably the branches of government is unable to per- most powerful anti-corruption organisation form their duties and functions properly as in Thailand. expected in the Principles of the Separation of Powers that require proper checks and 3. The Duties and Power balances. As mentioned in Medhi (2012), Box 1 below provides a short the Thai legislature is composed of mem- account of how the NACC was established, bers of parliament, many of whom are and what changes it has gone through in the elected into their posts through a series of past decade or so. This section will give vote-buying, and, therefore, are inclined to a summary account of the duties and power use this political power to recoup their of the NACC in connection with what it was election expenses through corrupt practic- designed to achieve or accomplish. es. Moreover, these legislative MPs are of- The duties and power of the NACC are ten subservient to the executive branch, given in Section 19 of the Organic Act on the

4 วารสารวิชาการ ป.ป.ช. Prevention and Suppression of Corruption, (7) To cooperate with international B.E. 2542 (1999). In non-legal or organisations or other foreign countries non-technical terms, the duties and power with regards to commitments to fight against of the NACC are as follows: corruption; (1) To investigate both the criminal (8) To request the Courts of Justice wrongdoings or misconduct in office of all to invalidate illegal permits or rights issued state officials above the rank of Specialists by certain state agencies. (or previous Personnel Classification 8 and It can be seen that the scope of above), and all politicians and political power and duties of the NACC are quite officials for prosecution in the relevant extensive and wide-ranging. The legal courts of justice; stipulation that the NACC be the only (2) To investigate offences related public organisation in Thailand that can to the unusual wealth of state officials, investigate and prosecute criminal wrongdoings corruption or misconduct in office and malfeasance while in office of all state sufficient for the NACC to submit the case officials ranging from middle-level public to the Senate to remove or impeach these officials all the way up to the heads of the state officials in question from office; three branches of government, namely the (3) To request the court of justice to Speaker of the House of Representatives, confiscate the unusual wealth of these state the Prime Minister, and the President of the officials; Supreme Court, and all political office (4) To require most political office holders is enough for everyone to realise the holders and given high ranking state enormity of the tasks at hand by the NACC.1 officials to submit the accounts of their Due to the centralisation of the investigation assets and liabilities to the NACC to be power, it is not a surprise to see that the assessed for their irregularities and unusual number complaints received by the NACC increases or decreases; of which an enquiry subcommittee must be (5) To suggest measures, provide set up to investigate has run into several recommendations, or give opinions to the thousands. It may take many years for a Cabinet, the Parliament, the State Audit case to run its course from the setting up of Commission, and the Courts, in order to an enquiry subcommittee at the NACC to generate actions to prevent or suppress the indictment and prosecution in the corruption and misconduct in office; relevant courts of justice. (6) To monitor and observe ethical Most of criminal wrongdoings of conducts of political office holders; state officials concentrate on the violation of Section 157 of the Penal Code which 1 There are at least two clarifications of this statement. One is that prior to the new legal change in the 2007 Constitution, the jurisdiction of the NACC covered ALL state officials, not just the middle-level and high-ranking officials as of today. The power to cover the state officials below the middle-level positions is now given to a new organisation attached to the Ministry of Justice called the Public Anti-Corruption Commission (PACC). The second clarification is that the prosecution power of the NACC can be invoked only after the Public Prosecutors at the Attorney General Office refuse to prosecute in the first place.

ปที ี่ 9 ฉบบั ที่ 2 (กรกฎาคม - ธนั วาคม 2559) 5 stipulates that “any competent official who Another activities that have conducts or refrains from conducting his increasingly pitched the NACC in good duty properly so as to cause damage to any light are the corruption prevention person, or conducts or refrains from conducting measures and recommendations to the his duty corruptly will be subject to government cabinet on various public imprisonment from one to ten years, or spendings. Normally the corruption prevention a fine from 2,000 to 20,000 baht, or both”. measures or recommendations carry no But there are also more specific offences, binding obligations on the part of the such as bribe taking, price fixing or prevention government, and it can ignore these of fair competition in public procurements, measures or recommendations entirely. and concealment of property, debts, and But a change of law is in the making that if business activities. Under the current Thai the recommendations or warnings from the laws, if the case is dropped by the NACC, NACC are given in conjunction with the no other state agencies can bring it up again, same from other independent organisations although the private injured party could such as the Election Commission and submit to his or her case to the court on his the State Audit Commission, the government or her own personal capacity. may be held accountable for damage if it As regards other activities of the ignores such warnings. NACC, the examination of thousands of In 2011, the Thai parliament amended assets and liabilities declarations have also the 1999 Organic on the Prevention and used up a great deal of working time of the Suppression of Corruption. This Second NACC. Because certain high-ranking state Amendment of this NACC Law which was officials are required to submit their assets announced in the Royal Gazette in April and liabilities declarations at least three 2011, gave even greater power to the times in their positions, the first one at the NACC. For example, the new Section 37/2 assumption of office, and the second one at gives the NACC similar power to investigate the end of tenure or position, and the third money laundering as that of the Anti-Money one at one year after leaving the office. But Laundering Office (AMLO); the new Section if he or she is in the same position longer 103/6 gives the power to the NACC to than three years, he or she must file another exempt the prosecution of a certain culprit declaration after every three year in office. if that culprit is willing to implicate other Obviously this requirement has created (often higher) officials with the information enormous paperwork for both the assets or evidence that he himself possesses as declaring officials and the assets examination a co-offender. By virtue of this Section, the officials of the NACC. Fortunately, however, NACC now has the power of the Attorney the establishment of NACC offices in all 76 General Office to exempt or not to prosecute provinces of the country in 2013 has a certain wrongdoer. And the new Section enabled these assets examination activities 123/1 enables the NACC to investigate all to be undertaken at these provincial offices, state officials defined as those who have relieving the burden on the Head Office in received their work compensations from Bangkok. government budget, and not just those

6 วารสารวิชาการ ป.ป.ช. officials who are specified as ‘competent NACC and the prosecution in the Special officials’ according to the definition in the Supreme Court for Political Office Holders. Penal Code. This is because unlike an ordinary court case where the plaintiff and the defendant 4. The Consequences have three chances to fight in the first court, What will happen after the NACC the appeal court, and the supreme court, the has finished it work, be it the criminal case against political office holders goes to investigation, the assets examination, the one court only, the Special Supreme Court submission of impeachment to the Senate, for Political Office Holders, and the verdict the discovery of unusual wealth, and so on. of this court is final and can be considered Let us look at each of these consequences for appeal only when there is a new in turn. evidence that hitherto was not considered On the criminal investigation, once earlier.2 In the last several years many the NACC has established that the state national politicians fled the country before official in question has committed offences a verdict is reached to avoid imprisonment. while in his office, he will indicted and the Those who stayed in the country have been case will be forwarded to the Attorney put in jail for their various wrongdoings. General Office for prosecution in relevant For high-ranking officials who are courts of justice. But if the public prosecutors not political office holders, the punishments are not satisfied with the case sent by the are not less severe. Section 92 of the 1999 NACC, they may call for a joint resolution Organic Act stipulates that a state official subcommittee between the AGO and the who has been indicted with criminal charges NACC to correct any incomplete sections will face automatic disciplinary actions or improve the case until an agreement is without a separate disciplinary investigation, reached and the public prosecutors take the and there are only two types of disciplinary case to court. But if the two sides could not actions, compulsory dismissal or compulsory reach an agreement, the case will be expulsion. Of course if the criminal case in returned to the NACC to carry out the the court of justice is acquitted, this official prosecution itself. There are already several will get his job back, but by then many high-profiled cases that the AGO refused to years would have been passed, and the prosecute and the NACC decided to carry out working situations will not be the same. the prosecution itself. These cases often Considering the fact that the Section 92 present sources of conflicts between these exists before the establishment of Adminis- two powerful public organisations. trative Courts, and the State Service It would not be far from the truth to Disciplinary Commission, the NACC may say that most politicians or political office be forced to ask for the change in this legal holders are afraid of the indictment by the power and relinquish this power to the 2 But to be fair, this Special Supreme Court for Political Office Holders will consist of nine judges elected from the all supreme court judges, compared to a normal court which normally have only three judges for the case.

ปที ี่ 9 ฉบับที่ 2 (กรกฎาคม - ธนั วาคม 2559) 7 Administrative Courts and the State Service world, the NACC has become an active Disciplinary Commission. member in international initiatives to deal The result from assets examination with the discovery and return of stolen can also create ripples in official circles. assets. In a Thai court at present, there is Many politicians and high-ranking officials a case where a Thai official is indicted for who were found to conceal their wealth or colluding with a couple of foreign (American) misreport their assets or liabilities were individuals to get Thai government indicted by the NACC and were subject to contracts and receiving monetary both the impeachment by the Senate and the kickbacks from these individuals. It is these punishment by the Special Supreme Court kickback money that the U.S. authority has for Political Office Holders. Although few frozen in many banks around the world that of these politicians were impeached from the Thai government is trying to get back if office (in fact, they may already be out of the court found this Thai defendant guilty.3 office, but the guilty verdict will carry additional 5-year moratorium on any political 5. The Danger and Perils office or position) but many had had their It should be clear by now, from the wealth and property confiscated by courts’ above account, how powerful the nine orders. A unique exception is the impeachment anti-corruption commissioners are in carrying of the former Prime Minister, Ms Yingluck out their jobs at the NACC. At least from Shinawatra for her misconduct on rice the personal experience of the author who subsidy policy without any implications on had worked in the Third Commission for her wealth or property. 6 years before his mandatory retirement in In the last few years we have seen 2012, we kept remind ourselves that the some interesting phenomena about the work more power we had, we had to be more of the NACC on the wealth and property of careful in using it. It should be mentioned state officials indicted for corruption or also that each commissioner had kept an misconduct in office. Increasingly, the eye on one another, so that if there is any NACC Commissioners have resorted to improper behaviour, especially with using the unusual wealth provision in the regards to the conduct in office we would law to freeze the assets of these officials and know and collectively would try to stop it. ask the court to confiscate this ill-gotten or The record has shown that none of the unexplained wealth. This should add more commissioners had ever been implicated in misery to the official culprits because, not any personal wrongdoings or improper use only will they face criminal penalty and of power while in office. On the contrary, disciplinary actions, they will now see their throughout the nine years of their services, wealth and property taken away as well. the nine old and new commissioners were And as a result of its new connection to the on the receiving end of many threats and 3 This is the famous U.S. v. Gerald Green et al. case in the Los Angeles District Court which started in 2008 and ended in 2010. For details in this case, plus an involvement of a Thai official see: https://www.justice. gov/criminal-fraud/case/united-states-v-gerald-green-et-al-court-docket-number-08-cr-059-gw

8 วารสารวชิ าการ ป.ป.ช. abuses from many groups of people, mainly corruption, and waste. More importantly, it those who were in support of the officials will destroy long-term economic efficiency who were indicted and prosecuted by the of the rice economy of Thailand. Despite its NACC for their various wrongdoings. It is various efforts to warn the Yingluck’s these threats and abuses that constitute real government of the danger of this policy, the danger and perils on the lives and limbs of government went ahead and implement its the nine NACC commissioners. policy. But when it was obvious that this What are the nature of these threats policy had brought about massive losses of and abuses. First, because the Third public funds, and various episodes of policy Commission was established by order of corruption, the NACC had no choice but to military leaders after the coup in September spring into action, and succeeded in the 2006, its detractors always argued about the impeachment of Ms. Yingluck and indicted legitimacy of this third NACC (despite the her for the misconduct in office for not endorsement by Royal Household Office stopping the damaging rice subsidy policy and the Supreme Court). The verbal and It was during these efforts to indict symbolic attacks on the NACC took many this Prime Minister between 2013 and 2014 forms, ranging from negative television that the nine commissioners had again programs, newspaper columns, frequent suffered various threats and abuses. The crude street demonstrations, and so on. street protest against the NACC reached its This display of hatred is not difficult to climax in late February 2014 when a large understand, as many leaders of the government group of protestors locked the main gate of at that time (in 2008) were all under criminal the Office of the NACC, set up a permanent investigation by the NACC. The situations barrier on the street leading to this main improved in 2009 to 2011 when there was gate, and threatened to kidnap these a change in government that was more friendly commissioners wherever they were found. to the NACC (despite the fact that the Needless to say, the life and liberty of these leaders in this government also came under commissioners were in jeopardy, and many investigation by the NACC). had to seek police or military protection. However, in 2011, the government The perils of the job is real and should not changed again, this time back to the control be taken lightly. of the party led by Ms. Yingluck Shinawatra, It is a misconception that the power the sister of the former prime minister of of the NACC cannot be checked. Indeed, if Thailand from 2001 to 2006, Mr. Thaksin any commissioner commits an offence, he Shinawatra. This time the NACC strongly or she can face a political motion by opposed the government policy to spend a members of parliament to remove him or great of public funds to subsidise the her from office. And if a commissioner is purchase of rice because the NACC had found to have committed a criminal offence learned from past experience of similar rice or unjust conduct, Section 125 of the 1999 case investigation, and as a result of its own Organic Act stipulates that he or she will academic research, that rice subsidy of this face the penalty twice the level that the kind would bring about irregularities, ordinary official will face. Although the

ปีท่ี 9 ฉบับท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 9 existing legal procedures contained in the The new NACC Commission, the 1999 Organic Act prevent the NACC Fourth since its beginning in 1999, assumed commissioners from being sued in the office at the end of December last year, and Special Supreme Court for Political Office is now in office for almost six months. It is Holders, this does not prevent disgruntled true that the selection process for this new officials who were indicted by the NACC to Commission was not as strict or stringent as sue the NACC Commissioners in the ordinary the past commissions, they must be given courts of justice. In fact, all commissioners the benefit of the doubt by their current became defendants in various court cases performances. One obvious change in this brought about by these officials. At the end, Commission is that the new Commissioners however, all the cases against the NACC are working very hard to clear the backlog Commissioners have continued to be thrown of cases in the office. In the two days of the out of the court. But the threat of private week that the Commissioners meet, litigation remains. Tuesdays and Thursdays, the Commissioners work very long hours, sometimes even into 6. Conclusion and Future Prospects the night. Proper credits must be given to In this paper we have described the the new President of the NACC, Police legal foundation of the power of the NACC General Watcharapol Prasarnrajkit, to push contained in the 1999 Organic Act on the for this new practice. It is also true that Prevention and Suppression of Corruption because he came from the police force and to show that the wide-ranging scope of power many observers suspect that he might has enabled to nine NACC Commissioners do something to favour the impending to do their jobs fairly satisfactorily despite investigation against many of his police various obstacles and hardship. It must associates, we should accept his words that be said that this outcome is possible because he did not anything out of ordinary, and all commissioners were independent from it would be foolish to risk his life-long all pressures and factions, and these reputation in his important new job. He may independent actions save them from any be assisted by several fortunate changes real harms from their work despite short-term that took place just before he came to the threats and abuses from their detractors and NACC. In the last two years, the interim opponents. As long as these independent government has been very much in support actions are observed and practised, the fight of the NACC and has catered for a huge against corruption can be won eventually increase in staff and budget. As mentioned won. But the people need to support this earlier, the relative calm facing the new independent organisation by treating the NACC is a welcome change from the work and decisions of the NACC with experience of the past NACC. Let us respect, and try to monitor the conduct and assume that this calm will continue, and the behaviour of its commissioners so that they new NACC succeeds in its efforts to fight will not go out of line, and try to protect extensive corruption in the country. them from unfair threats and abuses.

10 วารสารวชิ าการ ป.ป.ช. References U.S. Department of Justice, United States v. Gerald Green et al. Court Docket Medhi Krongkaew. (2012). The Constitu- no. 08-CR-059-GW, <https://www. tional Independent Organisations justice.gov/criminal-fraud/case/ (CIOs) as the Fourth Branch united-states-v-gerald-green-et-al- of Government, NACC Journal, court-docket-number-08-cr-059-gw> 5(1), 17-46. Box 1: THE NATIONAL ANTI-CORRUPTION COMMISSION, QUO VADIS? The year 2011 marks the end of the first cycle of the establishment of the National Anti-Corruption Commission or NACC in Thailand. By virtue of the 1997 Constitution, which spawned the Organic Law on the Suppression and Prevention of Corruption in 1999, the National Counter Corruption Commission or NCCC was set up on 18 November 1999. The English name of this organisation was changed to the National Anti-Corruption Commission in 2008 to reflect a more direct meaning of its function. Some of the readers may want to ask about the necessity of this organisation. Is it really necessary to create a public organisation specifically dedicated to the fight against corruption? Aren’t the existing law-and-order organisations like the police force and prosecutors sufficient to deal with the crime committed? What can this new dedicated anti-corruption organisation do that other existing organisations cannot do? And so on. The answers to these questions could be that in some countries where corruption is not a major problem, there is no need to have a special, dedicated organisation against corruption. The police and the prosecutors are sufficient to handle corruption problems at hand. But for some countries like Thailand where the Corruption Perception Index or CPI has never gone up higher than 4 out of 10, it probably needs to give its special attention to tackling corruption problems in earnest. Indeed the idea to have a special organisation to deal with corruption in the public sector started as early as 1975, when Thailand emerged from long years of military dictatorship to enjoy newly acquired democracy. The so-called Suppression and Prevention of Corruption and Misconduct in the Public Sector Act of 1975 had enabled the setting up of the first anti-corruption agency in the Thai government. But this organisation was just a department in the Prime Minister’s office, not an independent agency. So, its functions were subject to government supervision and control. It had only the power of recommendation, not the power of punishment. So, for almost 25 years, this anti-corruption agency was widely known as a “paper tiger”. Things changed for the better in 1997 when Thailand had a new constitution hailed as a People’s Constitution because it was drafted and enacted with extensive popular participation, unlike many previous constitutions which were the outcome of

ปีท่ี 9 ฉบับท่ี 2 (กรกฎาคม - ธันวาคม 2559) 11 military interventions. As mentioned earlier, it was this Constitution and its Organic Law on Anti-Corruption Activities that gave birth to the present NACC. In the beginning, the Commission consisted of nine members selected by the Senate through complex and elaborate procedures. The terms of these commissioners were 9 years or 70 years of age, whichever comes first. However, the First Commission only worked for four and a half years according to the temporary provision in the Constitution. The Second Commission was selected and went to work in 2004, but less than a year later it was involved in an activity which was later judged illegal by the Special Supreme Court for Political Office Holders, and all of the Commissioners lost their jobs and were given two-year suspended jail terms. By then, it had become very clear that this anti-corruption organisation was no longer a “paper tiger”. The Organic 1999 Anti-Corruption Law has given “real power” to this NACC, and it has utilized this new source of power to great effect. One of the most celebrated corruption cases that the NACC was able to prove itself was the case where it indicted a minister of public health for receiving bribes from private drug companies, resulting in the Special Supreme Court judges sending him to jail for 15 years and confiscating all his ill-gotten assets. Some might even say that the NACC has too much power. To give some examples, the NACC has jurisdiction over the enquiry into corruption and misconduct of ALL state officials in the country, from a lowly janitor in a government office to the prime minister. It has the power to ask practically everyone to give testimonies on any of the NACC cases, or to provide necessary or needed documents that are relevant to the cases, the refusal of which is punishable by law. If and when the NACC finds a prima facie case against any state officials, it does not mean that that person is guilty. The role of the NACC is simply to help screen the cases to be sent to the courts of justice via the prosecutor or the attorney general office. Indeed, the Prosecutor Office may disagree with the judgment or decision of the NACC and refuse to put the case in the court until this disagreement is solved between the NACC and the Prosecutor Office through a special joint committee. Here is another indication of the power of the NACC: If the joint committee fails to reach an agree- ment, the law still empowers the NACC to submit the case to the court directly by itself. Beyond the power to investigate criminal offences of state officials and/or their misconduct in office, the NACC also has the power to require any state officials to submit their assets and debts declarations. The law said that designated officials must file their assets and debts declarations with the NACC at least three times in their public jobs: one at the assumption of office, the second upon leaving office, and the third one year after leaving office. This assets examination can be looked upon as a part of corruption prevention because if any state officials cannot explain the sources of his or her income or wealth, they can be charged with the charge of “unusual wealth”, and the unexplained wealth

12 วารสารวิชาการ ป.ป.ช. can be confiscated. But a more proper corruption prevention role of the NACC can be seen in the issuing of various measures and recommendations to the cabinet or other governmental agencies in order to forestall or preempt corruption attempts. Finally, the NACC also works on the promotion of honesty and integrity among the general public. This probably is the most important function of the NACC in the long run, because if the people have high moral standards, and do not engage in corruption of any kind, then the role of the NACC can be made redundant. One brand new job for the NACC, according to the new provision in the 2007 Constitution, is the monitoring and oversight of the ethics of politicians. Here the new Constitution asks the NACC to work with the Ombudsmen, that is to say, the Ombudsmen set the ethical standards for Thai politicians and the NACC is tasked to operate or enforce them. When the present Commission, which is Commission No. 3, came into office almost 5 years ago, it was burdened with an enormous number of cases that continued to pile up during the two years (2004-2006) that the country was without the Commission. The Senate selection process for the Third Commission did not run its course when the coup took place on 19 September 2006. So the composition of the present Commissioners include those who were on the original Senate short-listed candidates, and some new members picked from other sources, and the whole Commission was appointed by the coup leaders. Of course the legal basis for this appointment is solid and cannot be legally faulted with; the extraordinary way in which this Third Commission assumed office was the source of attacks from some quarters who apparently want to see this Third Commission disappear for obvious reasons that members of this Third Commission are all independent and do not represent any political groups or individuals. The records have shown that the present NACC is doing its jobs fairly and without fear or favour. And because of that it has been subject to all kinds of abuses and intimidations by its detractors. The NACC Commissioners were cursed by witch doctors, bombed at, sued in court, reviled in chatrooms, and so on. It is lucky that the nine Commissioners are able to work well together, and are not deterred by all these threats and difficulties. It should be said that at the same time as the establishment of the present NACC in September 2006, another independent organization was also established by the coup leaders: the Assets Examination Committee (AEC). The 12-member AEC had the same power as the NACC plus two additional legal power sources, the Money Laundering Act and the Revenue Code. In other words, it had the additional authorities of the Money Laundering Commission and the Director General of the Revenue Department in the Ministry of Finance. While the NACC and the AEC were tasked basically to investigate corruption cases against state officials, the AEC had specific functions to investigate cases against Mr. Thaksin and his relatives, and other members of his cabinet during the 5 years that Mr. Thaksin was in power. The tenure of the AEC was one year which was eventually extended to one and a half years, after which the duties and all the remaining unfinished cases would be transferred to the NACC. So, at the

ปีท่ี 9 ฉบบั ที่ 2 (กรกฎาคม - ธนั วาคม 2559) 13 end of June 2008 when this transfer of power and cases against Mr. Thaksin and his relatives and associates took place, many accomplishments had been achieved. The cases against Mr. Thaksin continue to line up in his absence, ready to spring into motion once he returns to the country. Meanwhile, several new governments since Mr. Thaksin have come into power and gone out of power. There were cases against ministers and high-ranking state officials in these governments with the NACC as well. The fact that the NACC has received continuous flows of complaints against politicians and state officials from all sectors in the society, from government as well as opposition parties, from cities as well rural areas, could be construed as a sign of trust and confident that the Thai people at large are having on the performance and records of the NACC. It is a humbling experience for everyone who works in the NACC to strive to do better.

14 วารสารวิชาการ ป.ป.ช. Touching the Tiger's Tail: Going after Political Corruption Juhani GrossmannІ Most of the countries that we live in democratic aims. For every country that aspire to become a democracy. The struggle makes consistent and long term gains, there towards democracy is almost a uniformed are several that temporary give up. trend in the world. Some are ahead of other For over 15 years, the global s, and some are faster in terms of reform democracy has effectively stagnated or than others. Freedom House, an NGO that effectively not changed. A way to address tracks the state of democracy around the backsliding and stagnation can be the world, frequently laments the stagnation or wavering commitment of leaders. backsliding of countries which have made Table 1: Democracy: Lack of Progress? 1990 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Freedom 0.53 0.59 0.59 0.61 0.61 0.62 0.63 0.63 0.63 0.62 0.62 0.62 0.62 0.61 0.62 House Polity IV 0.53 0.65 0.66 0.66 0.67 0.67 0.68 0.69 0.69 0.69 0.69 0.69 0.70 0.70 0.71 Economist - - - - - - - 0.55 - 0.55 - 0.55 0.55 0.55 0.55 Intelligence Unit Bertelsmann - - - - - - 0.53 - 0.54 - 0.54 - 0.53 - 0.53 Index Note: All indices are rescaled to the 0 – 1 interval. Freedom House political-rights and civil-liberties scores are averaged and reversed. Source: Levitsky and Way, Journal of Democracy. January 2015 Sometimes people feel that new At best, flashy initiatives are seen as democratic leaders fail to deliver. Rarely is successes but they are not usually sustainable. this due to the leaders but because of how It was revealed that continued corruption in public sector is functioning. Leaders know Afghanistan contributes to terrorism in the what the problem is, but they are unable to country. This had also prevented services, implement their reforms. They have to curtails security and encourages people to contend with structural ills such as cronyism, tolerant extremists. nepotism, and conflicts of interests. Public services, as a result, dwindle away. I Head, Management Systems, International Indonesia-Programme (Funded by USAID)

ปีท่ี 9 ฉบับท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 15 The result is the inability to pursue side each other. Attempting to change reform minded governments. The skills are systems alone will not decrease occurrences unable to neutralize corrupt networks in of corruption and crimes involved to these government and to effectively manage activities as demonstrated in Russia’s massive administrative work. There is a great need reforms in the 1990s, education the public to find a way to dissect this cycle in order to about the effects of corruption will not be achieve democratic gains and beat corruption. successful if those from the top are immune To address corruption, a three- from punishment. The few anti-corruption pronged approach has to be effectively units that have done all these three employed: Prevention, Enforcement and approaches have been spectacularly Public Education. All these three are important successful in reducing the overall level of —but they will work if they are done along corruption. Figure 1: Hong Kong Three-Pronged Model Commissioner Administrative Branch Operations Department Corruption Prevention Community Relations Department Department Law Enforcement Prevention Education Source: http://www.icac.org.hk/en/about/struct/index.html We know that we need to take three business, healthcare, education or the civil directions to counter corruption—but we service. If those who run the parliament and need to be mindful of transformative government are corrupt, then it is extremely leadership as well. This person will be difficult to clean corruption in the whole prioritizing ways to institutionalize reforms system. and ways to eliminate corruption. We A recent study showed that corruption cannot rely on one’s integrity. Creating reforms are one of the topics least susceptible systems to limit corruption during the to external ties. On a good day, excellent narrow window of leadership is crucial. reform efforts are easily suppressed. On The question is what to tackle first. a bad day, the political class rallies around Political corruption is one relevant the structural weakening of institutions and utterly disturbing matter. It is rarely needing reform. Political corruption being approached in a concerted effort un- is a diverse field and there are many like measures aiming to clean corruption in manifestations of this.

16 วารสารวชิ าการ ป.ป.ช. One particularly relevant issue is ethical behavior. As mass parties decline in corruption during elections. During the membership, parties rely on wealthy pre-election period, there are campaign and individuals and corporate donors. Donation financing of political parties happening. caps that regulate influence donors over A glaring example is a scandal in Germany, politicians are eroding. A similar weakening which tarnished the legacy of the German of spending limits drives political spending Unification Chancellor. There were also even higher. Such erosion of these incidents of vote buying. In Russia, there accountability measures enable corrupt were instances of abuse of powers and powers to flourish in the political system. a hundred vote rigging techniques. How do we change this system? One may There is also corruption in argue that fighting corruption is hopeless; post-election processes such as rigging of as many in power are susceptible to this. procurement procedures. In Indonesia, There is no magic bullet to curb corruption. a web of 100 bank accounts by some politicians However, it is obvious that some jurisdictions was used to rig public procurement through display less political corruption. By looking the engagement of parliament members. at these systems, one can get some insights Kickbacks for the approval of government on ways to fight corruption. initiatives to legislation were also being It is key to go back to the three- conducted. They have the patronage of pronged approach to fighting corruption: affiliate companies in Brazil. Sale of political Enforcement, Prevention and Public positions such as the Senatorial Seat of Education. President Obama (USA) is also happening. Enforcement is as crucial as it is With so many options for graft, politics and difficult. Indonesia, Guatemala and Romania corruption are becoming more synonymous. have made significant progress in investigating Party politics is the best way to and prosecuting officers in all branches of ensure a stable democracy. Yet, even government. A key characteristic of these a stable democracy continues to have investigations is their complexity—specifically awkward relationships between money and on sourcing evidence and overcoming power. Money is necessary for political political hurdles. Those facing political parties. It also allows for more vibrant corruption will be facing the most powerful engagements and exchange of opinions. of adversaries (individuals with connections Money, however, needs to be at the right and ‘deep pockets). quality—with no strings attached which While most political criminals are severely limits the availability of these savvy, many are not. The head of Indonesia’s funds. Finding the balance between quality Constitutional Court was caught accepting and quantity of political financing is the a cash bribe of almost 600,000 Dollars at key. night in his own home. This case showed Markus Mietzner found that political that it is indeed possible to investigate and financing around the world are not set up to prosecute those at the top as long as we have produce leaders of the highest quality. the information to catch them. There is Incentives have always been against one’s a need for concerned bodies to build their

ปที ่ี 9 ฉบับที่ 2 (กรกฎาคม - ธนั วาคม 2559) 17 credibility to inspire whistle-blowers within at country with healthy systems would be the political arena to trust the agencies. of great help. We see that many countries Enforcement will inevitably be on the lower half of the CPI ranking implement faced by counter-attacks by those politicians direct anti-corruption reforms. Studies from who stand to lose. Romania and Indonesia agencies, such as the World Bank show that have been recent examples. These would tackling corruption directly is more involve newly found deep concerns related effective than tackling it indirectly. It is to the human rights of parliamentarians. more desirable to avoid repeating mistakes As investigators show more results, of the West from hundred years ago. pressures are likely to increase. Their only There are four ways and means of supporters are from the civil society, anti-corruptions that have brought positive journalists and the public. Building benefits: effective relationships for systematic l Effective (measurable, verifiable engagements with these groups are an and publicly transparent) spending caps to important measure in times of trouble. loom spending habits and achieve an equal Prevention requires a thorough level playing field. understanding of the dynamics of political l Another way is the achievement corruption especially the funding mechanisms of donation caps having the objectives to of politicians. Being in politics is an expensive regulate influence of donors over political undertaking. Budgets for legitimate expenses candidates. such as TV advertising had increased l These will only be effective if drastically around the world. The Washington there are transparent and rigid reporting of Post estimates that during the 2012 US requirements for candidates. This has to be presidential elections—the two candidates done on a timely and accessible manner. spent a total of just under 900 Million USD This would allow voters to include party on TV ads alone. This is equivalent to financing in deciding at the voting booth. the 2015 Thai budget for running the Yet, many have been reporting their spending parliament, the entire court system and all after the election is over—which is the independent agencies which includes completely useless. NACC. l Public subsidies would at least In many countries, these legitimate core functions of political parties in campaign costs are accompanied by exchange for stringent reporting requirements unofficial ones. They range from payments and clear penalties enforced by an independent to secure seats on party lists, over-donations arbiter. This would be difficult for countries from individual supporters and organizations with high levels of political corruption. to bribes of officials to smooth the way. NGOs have been saying that there is not The system rarely allows one from avoiding worth it to through good money for bad these costs. money. Negotiations are needed to increase The key to preventing political knowledge and awareness. In Indonesia, corruption is figuring out legitimate a coalition of CSOs have been in negotiations systems of party financing. Looking with the government and parliament to

18 วารสารวิชาการ ป.ป.ช. strike a grand bargain for a significant feed the Parasites (eluded to those who state funding for elections in exchange for accept the bribes).” The campaign was transparency and accountability about the several times revamped and was subjected use of these funds. to a number of focus groups to ensure effectiveness of the message. This Finally, the need for public education campaign utilized TV cartoons, leaflets, of political corruption is crucial because it posters and stickers. Polling showed that is the public who gets to decide who gets to 7% (2.5 Million citizens) of the population hold political office. In Ukraine in 2007, were affected by the campaign. research showed that the majority of the Social Media has allowed an public dislikes corruption but does not anti-corruption measure against political understand what structural harms corruption authorities to ensure against any brings. As a result, many of those who mainstream political bias. Through this, complain are also those who are most millions could be reached. Indonesia’s willing to engage in corruption. A massive anti-corruption agency now has almost 1.5 education campaign—through graphic million followers on Facebook and Twitter. images of parasites—sought to explain the This has allowed them to speak to the public ill-effects of corruption. They have thought both on education and high impact issues. of the ugliest images that explain “Do not Figure 2: KPK Indonesia Media Followers Source: https://www.socialbakers.com/statistics/twitter/profiles/indonesia/society/governmental/

ปีที่ 9 ฉบบั ท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 19 Apart from the three-pronged prevent them from happening. One of the approach to curbing corruption, the primary ways is to design systems to ensure following have to be born in mind in order spaces for people with high ethical to prevent it from happening: standards to flourish in politics. The ability l Anti-Corruption Agencies such to be accustomed to these ethical values as the Thai NACC should overcome an rather than to compromise principles should inherent appreciation for secrecy. The become a defining characteristic of denying longer the information is kept secret the any form of corruption. more susceptible the agency is to external pressure. This is similar to investigative References journalism. Once the information is set out, Hong Kong Independent Commission it is more impossible to sweep it under the rug. l Keep it simple - no investigating Against Corruption. Organization agency could do all the job. When given the Chart. http://www.icac.org.hk/en/ choice elect them to do simple cases rather about/struct/index.html. than engage them in complex pursuit. Levitsky, S., & Way, L. (2015). The Myth l Know yourself - one has to be of Democratic Recession. Journal able to be aware of the limitations of one’s of Democracy, 26, 45 – 58. political power and act accordingly. It may Twitter statistics in Indonesia. https://www. be important to build institutional alliance if socialbakers.com/statistics/twitter/ the power is rather limited or limiting to profiles/indonesia/society/govern- take over a power with vested interest. mental/. l Balance - one has to be careful of the balance of the range of cases being taken up. This is to ensure that all parties receive equal attention. l Keep your distance - one has to keep distance from being invited by the government to attend its activities. Such influence could be a blessing in disguise which could make it difficult for the agency once the government makes inevitable compromises. The challenge with political corruption is it puts everyone with an impossible choice. Those individuals that are faced with corruption are forced to make difficult choice of walking away or becoming part of the corrupt system. The only way to avoid these things to happen, both the individual and country levels, is to create systems to

20 วารสารวิชาการ ป.ป.ช.

ปที ่ี 9 ฉบบั ที่ 2 (กรกฎาคม - ธันวาคม 2559) 21 2ตอนที่ บทความทางวชิ าการ: การทุจรติ และการต่อตา้ นการทุจรติ Anti-Corruption Articles

22 วารสารวิชาการ ป.ป.ช. Cleaning House in Paradise – Fighting Corruption Using Integrity Diagnostics in the New Democracy in Bhutan Tay Keong TanІ บทคัดย่อ ราชอาณาจกั รภฏู านยุตนิ โยบายปดิ ประเทศและกลายเปน็ รัฐประชาธปิ ไตยเมอื่ วนั ท่ี 24 มีนาคม ค.ศ. 2008 กษัตรยิ อ์ งค์ทส่ี ี่ คอื จกิ มี ซงิ เย วังชกุ ไดส้ ละราชสมบัตแิ ละถา่ ยโอนอ�ำนาจการปกครองไปยงั พระโอรส ภายหลังจากทีพ่ ระองค์ทรงตั้งองค์กรอสิ ระเพือ่ ต่อตา้ นการทจุ ริต (ACC) องคก์ รนไี้ ด้ใช้เคร่อื งมือ วินิจฉยั ปญั หาคณุ ธรรมจรยิ ธรรมในระดบั องค์กรในประเทศ และในปคี .ศ. 2013 เครือ่ งมอื น้ี ถูกน�ำมาใช้ ในองคก์ รภาครฐั 12 องค์กร บทความน้ใี ช้หลักฐานจากเคร่ืองมือดงั กลา่ วโดยเน้นการออกแบบ การใช้งาน และบทเรียนเพ่ือเสริมสร้างคุณธรรมจริยธรรมในหน่วยงานภาครัฐ บรรษัทเอกชนและองค์กรทางสังคม ตา่ ง ๆ ในราชอาณาจกั ร ค�ำส�ำคญั : คุณธรรมจรยิ ธรรม เคร่ืองมือวนิ ิจฉยั การทุจรติ การป้องกนั การทจุ ริต ภูฏาน Abstract The kingdom of Bhutan, emerging from years of self-imposed isolation, recently became one of the world’s newest democracies on March 24, 2008. The fourth king, Jigme Singye Wangchuck abdicated and transferred power to his son. One of the last executive acts of the King was the creation of an autonomous agency, the Anti-Corruption Commission (ACC), to fight corruption in the fledgling democracy. The ACC undertook bold measures to promote the development of an ethical environment in Bhutan, amongst which was the introduction of an Integrity Diagnostic Tool for diagnosing and strengthening organizational integrity in the country. This instrument has been successfully piloted in at least 12 agencies since 2013. This paper examines the evidence-based instrument; its design, implementation plans, and early results. It highlights the challenges and lessons learned by the ACC and its partners in mainstreaming the tool’s integrity-building approach in government agencies, corporations, and civil society organizations throughout the kingdom. Keywords: integrity, corruption diagnostics, corruption prevention, Bhutan I Director of International Studies, Radford University

ปีที่ 9 ฉบบั ท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 23 1. Introduction economically integrated with South Asian neighbors (namely, India, Bangladesh, It is rare for a strongman political Pakistan, and Nepal) that are rife with leader to give up power in the height of his corruption. Bhutanese society has traditionally authority and legitimacy. Very few countries had few checks on government power, and underwent a top-down democratization the citizenry is used to patronage and is process mandated by a strong-man political deferent to authority. The nascent watchdog leadership that voluntarily devolved and agency, ACC, is a young organization still decentralized power. The fourth King of building its capacity and is severely Bhutan abdicated his throne in favor of his backlogged in dealing with cases. son in 2008. He signed into law a new How is Bhutan able to make such constitution and instituted wide-ranging headway in the anti-corruption struggle? democratic reforms - a bicameral legislature, More specifically, the Bhutanese corruption autonomous public agencies, and fighters developed, with the help of an a multiparty system with regular electoral Asian Development Bank (ADB) technical contests. Even more unusual is a nation-state assistance program, an evidence-based that has tackled corruption at the highest Integrity Diagnostic Tool to promote integrity levels of the legislature and bureaucracy.1 awareness and organizational integrity In 2013, the Anti-Corruption building. What are the ACC’s experiences Commission (ACC) successfully prosecuted and early results? This paper analyzes some the Speaker of the House and Home Minister of the challenges faced by the ACC in on corruption charges. Together with other introducing and instituting a system for major corruption scandals, high youth integrity diagnostics and anti-corruption unemployment, and problems with fiscal education among key public, private, and management of the economy, the ruling civil society organizations. This analysis is Druk Phuntsum Tshogpa Party lost the 2013 chronicled in the contexts of some early parliamentary elections in a landslide. success of Bhutan’s national integrity These accomplishments in fighting high-level strategy in the midst of profound political, organized corruption are especially hard economic and social changes in the kingdom. won because the Himalayan kingdom is 1 With these watershed events, profound changes took place in the political, economic, and socio-cultural landscapes in Bhutan. The king transferred most of his power to a newly established bicameral parliament in 2007. Executive power was devolved to a cabinet consisting of a council of ministers. Local elections of community leaders and mayors in districts, blocks, and municipal centers, and continuing devolution of power and resources to local governments commenced in 2007. Bhutan’s new constitution, ratified by the new King on July 18th, 2008 provided the mandate for the parliamentary elections. The Parliament comprises the King and two houses of Parliament - the National Council and the National Assembly. Democratic elections were held in early 2008 and the first democratically elected Prime Minister was sworn in on 9 April 2008. In March 2008, open and competitive elections for the National Assembly were held. Two leading parties, the People’s Democratic Party and the Druk Phuntsum Tshogpa Party (DPT) competed and the winning DPT party took some 95.7% of the votes, and 45 of 47 parliamentary seats.

24 วารสารวชิ าการ ป.ป.ช. 2. The Socio-Cultural and Political Context Anti-corruption efforts in countries around the world have typically yield Bhutan is commonly regarded as a dismal results. In many societies, anti- pristine paradise with unspoiled natural corruption efforts have not yielded significant beauty, traditional architecture, and a or sustained reduction in corrupt practices. relatively contented, spiritual people adhering A recent U4 report on national anti-corruption to age-old religious and cultural practices. efforts stated that “explicit anti-corruption Instead of pursuing the global yardstick for policies or strategies to date have often developmental progress – the Gross ended up paying lip-service and …. they Domestic Product (GDP) – the country’s not only consume large resources but also unique path to development is organized produce few results.”4 around the concept of Gross National Happiness (GNH).2 GNH mandates socio- 3. The Anti-Corruption Strategy economic development (including human In its uphill battle against graft, development and social progress, such as Bhutan has faced several unfavorable better education and health), conservation circumstances and disadvantages. First, the and promotion of culture, environmental land-locked country carries out most of its preservation and good governance. The trade with countries in South Asia that are kingdom, emerging from years of self- plagued with endemic corruption. Second, imposed isolation, has recently become one its political and civic institutions are young of the world’s newest democracies on and lack the capacity to provide effective March 24, 2008. The fourth King, Jigme checks on abuse of power in high places. Singye Wangchuck voluntarily abdicated It has very few civil society organizations and transferred power to his son, Jigme (none of them has a mandate directly Khesar Namgyal Wangchuck, who will related to addressing corruption). Third, the oversee the changes that would transform society has traditional values conducive to Bhutan from an absolute hereditary monar- corrupt practices such as unquestioned chy to a democratic constitutional monar- exercise of authority, lack of a strong chy.3 2 An idea introduced by the former King Jigme Singye Wangchuk in 1972, and the GNH favors the less-quantifiable measures of happiness to the utilitarian, income-focused GDP as a measure of the prog- ress and health of the nation. 3 The decentralization and devolution of power and democratic reforms have profound implications for the governance of the country and the fight against corruption. They created new centers of power and authority by introducing new institutions of governments, new rules of decision-making, and inducting new players into the political system. Bhutan is a small nation of about 700,000 people. Most of its educated elite were employed in the Royal Civil Service. During this democratic transition, many of the “best and brightest” left their secure tenure in public organizations to join political parties and contest in elections. Other political candidates come from the relatively undeveloped private sector. 4 Karen Hussmann, ed. (2007) “Anti-corruption policy making in practice: What can be learned for implementing Article 5 of UNCAC? - Report of six country case studies: Georgia, Indonesia, Nicaragua, Pakistan, Tanzania and Zambia,” U4 report: 46.

ปีที่ 9 ฉบับที่ 2 (กรกฎาคม - ธนั วาคม 2559) 25 understanding of political rights and civil to the Commission; (2) address grand liberties, deference to authority and conditions corruption in the political leadership and conducive to nepotism and patronage. mid-level corruption in the bureaucracy, Finally, Bhutan is a poor country (per capita apart from tackling small, street-level GDP is $2,655, which ranked the country corruption; and (3) institute a broad-based in the same category as Honduras, Bolivia process of building integrity rather and Papua New Guinea in 2015 by the than simply fighting corruption. Towards International Monetary Fund). A national operationalizing this strategy, the ACC used program to fight corruption requires significant a number of programs and activities, financial resources and personnel expertise, including public education talks to key and Bhutan has little public resources to organizations in all sectors throughout the fight corruption and enforce the laws like in country, corruption risk assessment in the Hong Kong and Singapore.5 larger government agencies and those Facing these challenges and facing significant corruption risks,7 proactive constraints, the ACC has to strategically outreach to media houses, and integrity focus its efforts on priority areas using its seminars for high-level public and private limited resources.6 Its strategy, as discerned sector leaders. from its programs and activities in enforcement, A new instrument8 used by the ACC education, and prevention, was premised on in addressing corruption in its national three factors: (1) engage the key organizations integrity strategy is an evidence-based in Bhutan as the locus of its enforcement integrity diagnostic tool for evaluation of and education activities instead of just integrity practices in organizations. It was focusing on individuals in cases reported targeted at organizations, able to address 5 On Bhutan’s anti-corruption and governance situation, some indicators show that the country is relatively corruption-free compared to neighboring countries in South Asia. In 2013, Bhutan ranked 31 out of 177 countries in Transparency International’s Corruption Perception Index (CPI). The Chairperson of the Anti-Corruption Commission, Neten Zangmo, in late 2013 declared a vision of “20th by 2020” – Bhutan to attain the rank of 20th in the CPI by the year 2020 (Royal Audit Authority & Anti-Corruption Commission, 2014). 6 Conversations between the author and the ACC Chairperson and Commissioners in October 2012 in the ACC Offices in Thimphu. 7 A National Integrity Assessment (NIA) adapted from the Republic of Korea’s Anti-Corruption Agency, has been implemented by the ACC since 2009. It is a diagnostic survey that covers 43 corruption-prone services provided by 27 public organizations. 8 This tool was developed in the course of a project funded by the Asian Development Bank (ADB) strengthen the Anti-Corruption Commission (ACC) of Bhutan. The author led a team of four consultants from the Partnership for Transparency Fund (PTF) to undertake the project between 16 July 2012 and 31 March 2013. Specifically, it draws from the experiences of integrity measurement tools in several countries and companies, including the Corruption Resistance Review by the Government of New South Wales in Australia; the Corporate Integrity Systems Assessment Questionnaire by the Malaysian Institute of Integrity; the Integrity Assessment tools of the Anti-Corruption & Civil Rights Commission of the Republic of Korea; and various tools used by private sector consulting groups such as Deloitte and KPMG.

26 วารสารวชิ าการ ป.ป.ช. mid-to-high level corruption, and focused development of the instrument is derived on integrity building. This tool is strongly from interviews with Bhutanese officials based on the concept of integrity as and intellectuals, and review of the literature, the antithesis to corruption in a society. and studies of integrity and anti-corruption Different definitions of integrity have tools from around the world. The integrity differing focuses, and little consensus exists construct is represented by the framework: on a true or universal definition.9 One Organizational Integrity = Compass + dictionary defines it as “the quality or Character + Conscience + Controls. The state of being of sound moral principle; composite measure of four key dimensions uprightness, honesty, and sincerity.”10 of an organization’s integrity is based on the In order to construct an integrity idea that integrity is a multi-faceted diagnostic tool, the concept of integrity has construct with dimensions that are observable to be defined in such a way as to have in organizational life.11 A diagrammatic clarity, utility, and relevance in the Bhutanese representation of the construct of integrity social, cultural, and organizational contexts. used in the development of the integrity The concept of integrity used in the diagnostics is in Figure 1 below: Figure 1: The Pillars of Integrity Character Compass Controls Conscience - Truthfulness - Vision - Checks and - Honoring - Accountability - Core Values Balances Commitments - Ethical Transparency - Corruption - Respecting - Sense of Competence Prevention Rights - Ethical Responsibility - Office-Personal - Observing Competence Boundaries Laws, Rules Responsiveness - Code of Conduct & Respect - Grievance Redress Policy 9 The construct may also include a firm adherence to codes of moral or artistic value, incorruptibility, or the quality of being complete and undivided. On a personal level, integrity requires one’s behaviors to be upright and adhering to moral principles; and actions to be based on good judgment. In addition, a person of integrity is considered to be trustworthy; diligent in honoring personal obligations and professional commitments. In social discourse, one has to adhere to truth-telling, promise-keeping and respecting the rights of others and rules of society. The concept is conceived with widely differing meanings from culture to culture and from time to time. 10 http://www.yourdictionary.com/integrity (accessed May, 14th, 2015). 11 While fighting corruption has its place in organizations, it cannot reform integrity practices in an organization or significantly change integrity competencies of its members. Integrity building (as opposed to combating corruption), is analogous to the phenomenon that fighting disease does not necessarily build health. It is through strengthening integrity systems that organizations are able to sustainably improve their resistance to corruption and raise ethical standards.

ปที ี่ 9 ฉบับท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 27 4. The Integrity Diagnostics Tool parsimonious findings, and its results were visually presentable in a graphical form for The Integrity Diagnostic Tool (IDT) public review and discussion. It presented instrument was developed for organizational data on the strengths and weaknesses of self-assessment by public and private sector existing integrity systems and measures as organizations in Bhutan. It provides well as the present and emerging risks of organizations with a blueprint for diagnosing corruption or abuse. their integrity gaps and corruption risks, The results of the IDT survey generated presents some general indicators of the an organization’s current integrity profile organization’s overall integrity and offers that highlighted its integrity assets and suggestions for areas of improvement. gaps. The profile could be compared with The development of this instrument, was those of other organizations in the same part of the mandate of the consultant team country and sector. It also created a baseline from the Partnership for Transparency Fund for organizational integrity interventions to in an ADB-funded project to strengthen track progress and demonstrate integrity the ACC. The tool was created based on gains in the same organization. Benchmarks discussions with the ACC during a technical could be set against the current (or baseline) assistance mission by the author from profile or a target threshold. Changes in the 23 July to 4 August 2012. 12 profile, as indicated by data from future This tool was developed for surveys, could illustrate gains or relapses in organizational self-assessment; it was integrity development over time. designed to be easy-to-understand, An illustration of the integrity profile user-friendly in its administration, applicable of an organization is represented by Table 1 to integrity concerns at different levels of an (Integrity Chart of Agency X) and Figure 2 organization, and focused on strengthening (Integrity Diamond of Agency Y) below: integrity rather than addressing corruption issues. IDT was designed to have simple, Table 1: The Integrity Score of Agency X in October 2012 Score 19.31 Pillars of Integrity 18.45 Compass 17.19 Character 19.02 Conscience 73.97 Controls Organizational Integrity Score 12 The development of the IDT was informed by research into the current and emerging practices in organi- zational integrity diagnostics, governance risk management, and corruption prevention from around the world.

28 วารสารวชิ าการ ป.ป.ช. Figure 2: The Integrity Diamond of Agency Y in October 2012 CONTROLS COMPASS 18.45 CHARACTER 19.02 19.50 19.31 19.00 18.50 18.00 14.50 17.00 16.50 16.00 17.19 CONSCTENCE Diagnosis alone will not bring the structure, culture, and processes of about change. Following diagnosis, further organizations concerned. Data from the IDT work was needed to strategize and develop survey were supplemented with further actionable programs to address the weak analysis from structured interviews, focus links in the ethical infrastructure of group discussions, and the personal organizations, particularly in the form of an integrity self-assessment by leaders of the integrity building program that permeates organizations.13 13 When integrity testing reveals a pattern of behavior that presents a special or severe risk to the organization, or if findings tell of a serious systematic deficiency (e.g. gross disregard of organizational policies and laws), follow-up interviews may be needed. More can always be done to uncover the true nature and circumstances surrounding suspected serious ethical violations and corruption risks.

ปที ี่ 9 ฉบบั ที่ 2 (กรกฎาคม - ธันวาคม 2559) 29 This instrument was administered explained to the respondents in an in the format of a facilitated self-assessment environment with safeguards for privacy by a significant segment of the stakeholders and confidentiality. All the respondents’ with knowledge of the organization. A total scores were averaged to derive an minimum of 30 respondents was typically Integrity Score for the organization being recommended, the sample size to be assessed. The data was further analyzed to determined on a case-by-case basis from determine the organization’s integrity the size and complexity of the organization. profile. Representations of the data collected Hardcopies of the questionnaire were from the pilot implementation of the IDT distributed and the questions carefully are presented in Figures 3 and 4 below: Figure 3: Organizational Integrity Diagnostic Test of Agency X in October 2012

30 วารสารวิชาการ ป.ป.ช. Figure 4: Organizational Integrity Diagnostic Test of Agency in October 2012 5. Analyses of Results and Integrity The Integrity Diagnostic Tool (IDT) was piloted in the ACC on 15 October 2012 Building Plans with all staff members taking the Integrity Diagnostic Questionnaire, following a While the findings of the standardized public education talk on Corruption and questions of the IDT could point to areas of Integrity by the author of this paper. It was strengths or weakness in the organization, subsequently piloted in the Royal Civil they could not shed more light on deeper Service Commission (RCSC), the Kuensel questions about the causes of weakness or Corporation (largest English media house the reasons behind differences in scores in Bhutan), and the National Council across levels or sub-divisions of an Secretariat of Bhutan (administrative arm organization. This required follow-up of the upper house of Parliament). interviews or focus group discussions with Following analysis of the data from a selection of stakeholders. The findings the piloting process, the results of the enabled organizational leaders to assess the questionnaire were presented to the extent to which each aspect of the construct management and staff of the pilot agencies. may have changed, and how the changes in Its results were confirmed by a validation each may have contributed to the overall process involving all ACC staff at a retreat organizational integrity score. This at a resort location an hour’s drive from the information visually demonstrates an capital city on 30 October 2012. Upon the organization’s integrity risk profile and highlights the integrity assets and gaps of the organization.

ปีท่ี 9 ฉบบั ที่ 2 (กรกฎาคม - ธนั วาคม 2559) 31 plenary presentation of the ACC test results, Foundation Day on 31 December 2012 staff members were organized into focus to commemorate the founding of the groups to discuss the findings and draw organization on that day in 2006 and recommendations on how the organization celebrate its accomplishments over the past should respond to them. ACC staff six years. members also gave some feedback on the Finally, the ACC’s integrity action organization’s integrity practices as well as plans include clear and regular communications on how the IDT might be used in their from management to all ACC staff on day-to-day operational work. policies and changes, town hall meetings Arising from the discussions at the for dialogue, setting ground rules for open validation meeting, a few ideas and recom- and yet respectful dialogue, and paying mendations emerged to inform the next attention to feedback from staff members. steps for the ACC to address the issues In the months of November and December raised by the IDT findings. These measures, 2012, the ACC management adopted and categorized under three main headings, instituted new internal communication were to form the Integrity Action Plan of the channels to explain the basis of its decisions ACC, and they were accepted by the ACC and strengthen internal communication. leadership for implementation in 2012/2013. The most important channels of information For instance, in the case of the ACC, for ACC Staff (according to staff feedback) following its IDT assessment, the organization’s were: division-level weekly staff meetings: complaints and grievance procedure was monthly meetings with the top management reviewed and overhauled (e.g., responsibility team; internal email communications; and for inquiry into complaints and reporting town hall meetings with senior leaders in assigned). A Task Force on Grievance ACC. Redress, consisting of two ACC staff The keys to effective integrity members and an external consultant was diagnoses and interventions are clear action formed to develop a new grievance and steps, a system for monitoring, and ongoing complaint redress mechanism for the commitment by top management to organization. implement the measures. An Integrity Resulting from the publication of Action Plan with provisions for assigning the IDT findings, leadership training and responsibility and timelines for completion team building were being given significantly of tasks served to track progress in the more emphasis. The ACC leadership paid implementation of the integrity interventions. more attention to positive reinforcement Like most anti-corruption policies, the early than criticism/censure of staff. Other results of the IDT could not be attributed to measures included the training of mid-level accident or happenstance. They are the managers to lead cross-functional teams outcomes of hard-won battles that are the and set good examples for staff members. direct results of deliberate policies and Another measure to honor staff members of thoughtful measures that are put in place the ACC is the celebration of the First ACC and methodically implemented.

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34 วารสารวชิ าการ ป.ป.ช. NACC Integrity and Transparency Assessment Dararatt AnantanasuwongІ บทคัดย่อ ส�ำนักงานคณะกรรมการป้องกันและปราบปรามการทุจริต (ส�ำนักงาน ป.ป.ช.) ได้ริเร่ิมสร้างดัชนีวัด ความโปร่งใสด้วยหลักฐานเชิงประจักษ์ เพ่ือเป็นเครื่องมือในการวัดธรรมาภิบาลของหน่วยงานภาครัฐ อันเป็นกลยุทธ์หนึ่งในการป้องกันการทุจริตในภาครัฐ ต้ังแต่ปี พ.ศ. 2552 ในระยะแรกของการพัฒนา เคร่ืองมือน้ี เป็นการด�ำเนินการโดยคณะท�ำงานภายใต้ศูนย์วิจัยของส�ำนักงาน ป.ป.ช. วัตถุประสงค์หลัก คือ การวัดระดับความโปร่งใสในการบริหารงานของหน่วยงานภาครัฐ เพ่ือสามารถชี้ให้เห็นหรือแนะน�ำ “การปฏบิ ตั งิ านทีด่ ี” และ ไดม้ ีการด�ำเนินการโครงการน�ำรอ่ งในปี พ.ศ. 2553 และ 2554 อยา่ งไรก็ตาม ตงั้ แต่ปี พ.ศ. 2555 เป็นต้นมา ได้มกี ารขยายขอบเขตและขนาดของโครงการโดยการรวมการวัดคณุ ธรรม ด้วยความคิดเห็นของผู้มีส่วนได้ส่วนเสียและดัชนีวัดความโปร่งใสด้วยหลักฐานเชิงประจักษ์เข้าด้วยกัน และการประเมินหน่วยงานภาครัฐทุกประเภท ทั่วประเทศ รวมท้ังการปรับเปลี่ยนหน่วยงานหลักท่ีรับผิดชอบ โดยมีคณะท�ำงานเพื่อการพัฒนาเคร่ืองมือ และการจัดจ้างหน่วยงานวิจัยภายนอกส�ำนักงาน ป.ป.ช. ด�ำเนินการศึกษาตามเคร่ืองมือท่ีได้พัฒนาขึ้น โครงการประเมินคุณธรรมและความโปร่งใส จึงมีความ ส�ำคัญและเป็นกลยุทธ์ท่ีสร้างสรรค์ในการป้องกันการทุจริตในหน่วยงานภาครัฐของประเทศไทย ซึ่งการวดั ด้วยเครื่องมอื ดงั กล่าว สอดคล้องกบั แนวปฏิบัติในการวดั การทุจรติ ของ UNDP ค�ำส�ำคัญ: ธรรมาภิบาล การประเมนิ การทุจริต ตวั ชวี้ ัดคณุ ธรรมและความโปรง่ ใส ประเทศไทย Abstract The National Anti-Corruption Commission (NACC) of Thailand has initiated evidence-based transparency index to measure governance in the public agencies since 2009 as a prevention strategy against corruption in the public sector. In the early stage of instrument development, the evidence-based transparency measurement was conducted by a working group under NACC Research Center. The main objective was to measure the levels of transparency in administration of public agencies so that ‘good practices’ could be identified and suggested. Two pilot projects on evidence-based transparency index were conducted in 2010 and 2011. Since 2012, the scope and scale of the project have been expanded by combining perception-based integrity measurement and evidence-based transparency index together, involving all types of public agencies nation-wide, and I Dararatt Anantanasuwong is a member of Sub-Committee on Research, Thailand’s National Anti-Corruption Commission (NACC). She is Senior Researcher and Director of Center for Aging Society Research, Research Center, National Institute of Development Administration. She was formally Associate Dean of School of Development Economics and Director of Research Center, National Institute of Development Administration. Email address: [email protected]

ปีท่ี 9 ฉบบั ที่ 2 (กรกฎาคม - ธันวาคม 2559) 35 restructuring the main internal responsible division with a working group to develop the instruments and an outside research institute employed to conduct the survey and study. ITA is an important and constructive strategy to prevent corruption in the public agencies of Thailand. The ITA measurement is in accord with the UNDP Users’ Guide to Measuring Corruption. Keywords: good governance, corruption assessment, integrity and transparency indicators, Thailand 1. Introduction The focus of the paper is to elaborate NACC’s initiation and effort to measure the Corruption Perception Index (CPI) transparency level in public sector by for Thailand by Transparency International developing its own instruments based on (TI) during the past decade (2003 – 2014) evidences and perceptions. The initiation is has been scored 3.3 to 3.8 (out of 10 score of value since it is in accord with UNDP point). The CPI indicated that the level of Users’ Guide to Measuring Corruption. The transparency of Thailand is relatively low paper is organized by introducing the points or the level of corruption is relatively high. of interest from the UNDP Users’ Guide to CPI is to measure the level of transparency Measuring Corruption, followed by the or corruption in the public and political development of the integrity and transparency sectors in countries based on expert perception. assessment measurement by NACC and The perception-based indicators can be pinpointing the consistency of NACC diverged depending on respondents’ motives. measurement with UNDP Users’ Guide, The National Anti-Corruption and finally the conclusion. Commission (NACC) of Thailand is the independent organization under the 2. UNDP Users’ Guide to Measuring Constitution empowered to punish and Corruption prevent corruption in the public sector. The In 2008 United Nations Development low scores of CPI for Thailand has Programme (UNDP) published a Users’ challenged NACC to find out the existing Guide to Measuring Corruption to provide corruption level in the public agencies with information on different measurement evidence-based indicators. The challenge is approaches and practical guidance on good consistent with its mission on corruption practices for anti-corruption initiatives to prevention. NACC launched a pilot project be more effective. The following are the on transparency in public agencies using summary of interests from the Users’ Guide evidence-based indicators in 2010 and (UNDP, 2008: 3 – 31). modified the pilot project to assessment of 1. To measure corruption, two integrity and transparency in public things are needed: (1) multiple sources of agencies using evidence-based as well as quantitative data, qualitative narrative perception-based indicators in 2014. analysis and real-life case studies to “paint

36 วารสารวชิ าการ ป.ป.ช. a picture” of corruption in a country, and (2) aggregating many ‘voices’ and signals of “actionable” measurements that provide corruption, or by measuring the opposite, insight into where reforms can be made. i.e., anti-corruption, good governance and In other words, the value in an anti-corruption public accountability mechanisms. measurement is when it can indicate what to d. Pro-poor and gender-sensitive be fixed. indicators require a focus on those living in 2. From the review of existing poverty, and a gender sensitive indicator corruption measurements, a taxonomy of captures the different experiences and corruption indicators can be distinguished interests of women and men. Such indicators into 4 categories: (1) the scale and scope of are useful to track the potentially different indicators, (2) what is actually being impacts that the mechanisms and processes measured, (3) the methodology employed, of governance have on different social and (4) the role that internal and/or external groups. stakeholders play in generating the assessments. 3. NACC’s Integrity &Transparency 3. The main types of corruption Assessment indicators are: 3.1 Evidence-based Transparency a. Perception-based indicators Measurement (relying on the subjective opinions and The awareness of the country’s perceptions of level of corruption in a given low scores of CPI during the past decade country among experts and citizens) and has led NACC to initiate a transparency experience-based indicators (to measure measurement of the public sector in Thailand actual personal experience with corruption). with evidence-based indicators. The initiation Perception-based and experience-based is intended to be consistent with its preventive indicators can diverge widely as respondents mission against corruption in the public are often reluctant to openly discuss sector. bribe-giving. The first attempt was to construct b. Indicators based on a single the transparency indicators to measure the data source (i.e., produced by the publishing levels of transparency in administration of organization without recourse to third-party public agencies. Since the public agencies data) and composite indicators (i.e., aggregate in Thailand have many functions/missions and synthesize different measures generated to administer, they were allowed to specify by various third-party data sources). In the their main function/mission of service corruption realm, composite indicators delivery to be assessed. A working group remain the most widely used measurement under Puey Ungphakorn Anti-Corruption tools because of their near-global coverage, Research Center of NACC was appointed which allows cross-country comparisons to to construct the indicators. The conceptual inform aid or business decisions interna- framework for the first set of evidence-based tionally. transparency indicators were finalized in c. Proxy indicators assess 2009. A pilot project on ‘Evidence-based corruption through indirect measures by Transparency Index of Public Agencies’

ปที ่ี 9 ฉบับท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 37 with 8 public agency samples was commission group and the public agencies involved. to a university research center to conduct Survey methods involved evidences from the survey and to calculate the levels of documents referred in the survey questionnaire transparency with the developed measurement responded by the agencies, site-visit in 2010. The conceptual framework is observation of the agencies’ service shown in Figure 1. The concepts and indicators delivery, and the searching time of the of transparency measurement were agencies’ websites. Perception-based reviewed and revised (Figure 2) and the indicators to measure the morale and trust second pilot project were conducted by the in organization of the agencies’ personnel researchers of Puey Ungphakorn Research were also included in the survey. Finally, Center in 2011. The second pilot project the results of scores and ranks by each index surveyed 51 public agencies with the and indicators and by agencies were revised transparency indicators. All the disclosed to relevant public agencies. From public agency samples in both pilot projects the results of the second pilot project, were located in Bangkok area. NACC announced the transparency levels The revision of transparency and gave a certificate rewards to the top 10 indicators came from the comments or high transparency ranked agencies feedbacks from the experts in the working Figure 1: Conceptual Framework: Evidence-Based Transparency Index of Public Agencies, 2010 9 Indices 17 Indicators Formulation of Implementation of Monitoring and Transparency Policy /Strategy Policy /Strategy Index Evaluation Ranking Index Index Procurement Index Performance Monitoring Policy Transparency Index Information Accessibility & Evaluation Index Index National Anti-Corruption Performance Achievement Strategy Index Participation Index Index Quality and Fairness in Service Delivery Index Personnel Morale Index Good Governance: Transparency, Rule of Law, Virtue, P1 articipation, Accountability, Efficiency

Figure 2: Evidence-Based Transparency Index and Indicators of Public Agencies, 2011 38 วารสารวิชาการ ป.ป.ช. Transparency 7 Indices 17 Indicators Instruments in Main Procurement Transparency Index Function Procurement Characteristics/Activities Survey Execution Information Accessibility Index Procurement Info Disclosure Questionnaires with Participation Index Evidence Documents Good Procurement Complaint Mechanism Governance Quality and Fairness in Service Observation on Site Delivery Index Info Accessibility Channel Secondary Data Source Website Info Contents Performance Efficiency Index Survey Time Used to Access Website Questionnaire with Anti-Corruption Strategy Index Stakeholders’ Participation Level Evidence Documents Secondary Data Source Personnel Morale Index Equity in Service Delivery Individual Survey Complaint Execution Process Disclosure Evaluation on People’s Perception and Info Access Questionnaire Service Delivery Site Visits Performance Achievement Level Prevention System for Conflict of Interests Anti-Corruption Performance Achievement Level Anti-Corruption Cohesion of Personnel Number of Corruption Accusation C1onfidence in Organization by Personnel

Figure 3: Conceptual Framework: ITA 2014 Transparency Organization Administration Assessment Complaint Responses Instruments Integrity & Accountability Legal Responsibilities EIT & EBIT ปีท่ี 9 ฉบบั ท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 39 Function Responsibilities EIT & EBIT Transparency Integrity in Service Assessment Delivery Experiences EIT Perceptions EIT Integrity Culture Organization Culture EIT Anti-Corruption Institution EIT Work Integrity Personnel Management IIT Fairness in Work Assignment IIT & EBIT EIT = External Integrity & Transparency Assessment IIT = Internal Integrity & Transparency Assessment Budget Administration IIT EBIT = Evidence-based Integrity & Transparency Assessment IIT IIT

40 วารสารวิชาการ ป.ป.ช. 3.2 Integrity and Transparency Assessment scored integrity and transparency agencies. (ITA) Measurement The reward decision of NACC has not been In 2013, in order to expand the finalized. scope and scale of the transparency Currently, the 2014 ITA instruments measurement, NACC has included the are under reviewed and revised by the “perception-based integrity” indicators steering group to be used in the next ITA adopted from Korean model with the project. The main index remain the same, “Evidence-based Transparency Index” to however the contents and scoring methods assess integrity and transparency levels in are under review and revise for better the public agencies. Planning and Strategy representation of the concepts on perception- Division of NACC is the organization in based indicators for external and internal charge of the “Integrity and Transparency assessment and for ‘actionable’ suggestion Assessment” (ITA) project and a university on integrity and transparency to the public research center was commissioned to agencies. synthesize the integrity and transparency indicators into a new set of measurements. 4. NACC-ITA and UNDP Users’ Guide The conceptual framework of ITA is shown Evidence-based transparency index in Figure 3. and the current ITA arose from NACC’s After the completion of ITA instrument awareness of good governance and development, a steering group was corruption measurement tools. A prevention appointed to supervise the survey using the strategy against corruption needs “good ITA indicators. The ITA survey has been practices” from evidences as well as commissioned to a new university research stakeholders’ perception/experiences. It is center in 2014. This project involved 265 of value that NACC’s initiation and effort to sample public agencies across the country measure integrity and transparency of the at the central, provincial, and district levels. public sector in Thailand are in accord with Three types of instruments were employed the Users’ Guide of UNDP. NACC-ITA can in the survey, i.e., the evidence-based be explained by the taxonomy of corruption integrity and transparency index (EBIT) indicators of the Users’ Guide as followed: of the agencies, the perception and 1. What is being measured by experience-based index from the external ITA: The integrity and transparency index and internal stakeholders (EIT and IIT) of and indicators assesses the levels of integrity the relevant agencies. The ITA survey and transparency in administration (i.e., the project is now in progress and to be main functions or the specified main service completed by September 2015. The results delivery) of the 265 public agencies across of the project is expected to be used as a the country1, as well as ‘voices’ of their criterion for bonus rewards to the high internal and external stakeholders. The ITA 1 Samples of 265 public agencies in Bangkok and 76 provinces were included. These agencies were Inde- pendent Organization (1), Constitutional Organizations (2), Parliamentary Organizations (2), Judiciary Organizations (2), Central Administrative Organizations (123), Non-attached to Cabinet Office/Ministries/ Department Offices (7), Provincial Organizations (8), State Enterprises (42), Public Enterprises (4), Pro- vincial Administrative Organization (53), Municipalities (20), and Special Local Administrative Organiza- tion (BMA) (1). Note: ( ) indicates the number of sample of public agencies surveyed.

ปีท่ี 9 ฉบบั ท่ี 2 (กรกฎาคม - ธนั วาคม 2559) 41 is an entry point for understanding the function by the agency for assessment- anti-corruption and good governance in the some public agencies do not have the public sector that should ideally prevent or service delivery, some do. deter corruption. 2. Unstable methodology: Sampling 2. Conceptual Framework 2014: of public agencies – identifying stakeholders; Proxy indicators for anti-corruption and scoring and aggregating the ‘perception- good governance (5 index and 11 indicators). based’, ‘experience-based’, and ‘evidence- 3. Input (rule-based) vs. Output based’ into one aggregate score for ranking (Outcome-based): Input and outcome- ITA level. based assessment. 3. Cooperation of stakeholders 4. Composite vs. Original Data: and public agencies in providing data as Original data opinions and evidences. 5. Objective vs. Subjective Data: 4. In conducting ITA, which Objective and subjective data organization should be for the best interests 6. Internal vs. External: Internal of NACC? ‘Outsourcing’ to research and external. The assessment methodology institutes or government agencies vs. NACC is designed by NACC and the survey is ‘in-house source’. If in-house source, Puey outsourced to an external organization. The Ungphakorn Anti-Corruption Research 2014 ITA project is commissioned to a Center vs. Planning and Strategy vision, for university research institute. For the next conducting ITA. Both choices involve the survey and assessment in 2015/2016, there ‘quality control’ of assessment. is a possibility to outsource part of the work 5. Constraints on budget and man- and some part will be a collaborative effort power to conduct ITA as well as IT capacity with other government agencies at local Prospects: With 2 pilot projects on level. Transparency Index and the on-going ITA 7. S t r e n g t h s : N A C C i s t h e project, the prospects seem to be positive. national organization to counter corruption. The ITA project received good support from Prevention of corruption is one of the main NACC Commissioners and a group of missions. research officials obtain experiences by a 8. Weakness: Constraints on budget, ‘learning by doing’ process under close manpower, IT capacity to conduct the field collaboration with the members of the survey and assessment in-house. working group/steering group. The commitment to better practices of transparency 5. Problems and Prospects of NACC-ITA measurement should be a key to success in Problems of NACC-ITA are short-run fulfilling NACC’s mission to prevent nature in the following issues: corruption. The ITA effort is also in accord 1. Unstable assessment instru- with the international standard in measuring ments: Definition and transformation of corruption. “good governance” concepts into ‘action- able’ measures, ‘One measurement fits all agencies?’. Identifying administrative

42 วารสารวชิ าการ ป.ป.ช. 6. Conclusion ITA is an initiation and effort of NACC to measure good governance of the public agencies with evidence-based, perception and experience-based index and indicators. It is an important and constructive strategy to prevent corruption in the public agencies for Thailand. The challenge is that the effort needs ‘time’ and ‘many factors’ to excel in measuring good governance in the task diversities of the public agencies. However, Thailand’s NACC-ITA is a valuable measurement of corruption in accord with UNDP’s Users’ Guide to Measuring Corruption. References National Anti-Corruption Commission. (2012). Transparency Index in Public Agencies 2012. Puey Ungphakorn Anti-Corruption Research Center. (in Thai) United Nations Development Program. (2008). A Users’ Guide to Measuring Corruption. Downloaded on May 1, 2015 from http://www.undp.org/ content/dam /aplaws/ publication/ en/publications/democratic-gover- nance/dg- publications-for- website/a-users-guide-to-measur- ing-corruption/users_guide_ measuring_corruption.pdf

ปีที่ 9 ฉบับที่ 2 (กรกฎาคม - ธนั วาคม 2559) 43 Early Public Sector Reform Efforts to Fight Corruption in Thailand: Institutional Dilemmas and Challenges Kowit KangsananI บทคัดยอ่ บทความนี้ ศึกษาเก่ยี วกับการปฏิรูปการต่อต้านการทุจริตในประเทศไทย โดยใหค้ วามสำ� คัญกับ 3 ประเด็น ได้แก่ การปฏิรูปการต่อต้านทุจริต ปัญหาและข้อจ�ำกัดท่ีต้องเผชิญในการปฏิรูปการต่อต้าน การทจุ ริต และความทา้ ทายเชิงสถานบนั หลกั ๆ ในอนาคต จากพนื้ ฐานตัวแบบของการปฏิรูปการต่อตา้ น การทุจริตในประเทศก�ำลังพัฒนา ผลการศึกษา พบว่า การปฏิรูปการต่อต้านทุจริตในประเทศไทยเผชิญ กับปัญหาอุปสรรคส�ำคัญหลายด้านที่เช่ือมโยงกับการขาดเจตจ�ำนงทางการเมือง การให้ความส�ำคัญกับ กลยุทธ์เชิงรับมากเกินไป การประสานงานมีลักษณะเบี้ยหัวแตก การมีความซ้�ำซ้อนของแผนงาน การแทรกแซงการต่อต้านการทุจริตท่ีไม่มีประสิทธิผล การมีส่วนร่วมขององค์กรภาคประชาสังคมไม่เพียงพอ ปญั หาการบริหารจดั การองคก์ ร และปัญหาการพัฒนาทางเทคโนโลยี ซง่ึ จากข้อคน้ พบดงั กลา่ ว บทความนี้ จึงเสนอข้อท้าทายส�ำคัญที่ควรได้รับการพิจารณาเพ่ือท�ำให้การปฏิรูปสถาบันการต่อต้านการทุจริต ส่งผลให้การต่อต้านการทุจริตในประเทศไทยมีประสิทธิภาพและมีความยั่งยืนมากข้ึน ส่ิงนี้รวมถึง ผู้น�ำทางการเมืองมีพันธะความรับผิดชอบมากขึ้น การมีบูรณาการด้านความพยายามต่อต้านการทุจริต ร่วมกัน การสร้างธรรมาภิบาลและการบริหารงานต่อต้านการทุจริตแบบเครือข่าย การมีแผนงานการ ตอ่ ต้านการทุจริตเชงิ รุกมากข้ึนและยงั่ ยนื รวมทง้ั มีการแบ่งปนั ความรู้และการเรียนร้มู ากยิง่ ขน้ึ ค�ำส�ำคัญ: การตอ่ ตา้ นการทจุ ริต การปฏริ ปู เชิงสถาบนั การสร้างและพฒั นาสถาบนั Abstract This paper studies anti-corruption reforms in Thailand by focusing on three questions; what are these reforms, what kind of problems and constraints have they faced, and what are the key institutional challenges in the future? Based on a conceptual model of anticorruption reforms in developing countries, the study eventually finds that Thailand's anti-corruption reforms have encountered some critical dilemmas related to lack of political will, overemphasis on reactive strategies, fragmented coordination, program redundancy, ineffective anti-corruption intervention, inadequate involvement of civil society organization, organizational and management problems, and problems of technological development. Based on these findings, the paper proposes critical I National Institute of Development Administration (NIDA) and Rajapruk University (RPU)

44 วารสารวชิ าการ ป.ป.ช. challenges needed to take into consideration for the anti-corruption institutional reforms to become more effective in fighting perpetuated corruption in Thailand. This includes more commitment of political leadership, convergence of anti-corruption efforts, anti-corruption network governance, more proactive and sustainable anticorruption programs, and shared knowledge and learning. Keywords: anti-corruption, institutional reform, institution building 1. Introduction Thailand's corruption level has not been changed much in the last four years during Generally, corruption is the abuse 2006-2009 with the average 3.45 CPI scale and misuse of public office for private gain and 0.1 change. This statistics clearly ranging from the level of high political illustrates that the country has been offices to lower street-level ones. Corruption seriously plagued by systemic and normative is a problem in both rich and poor countries corruptions. The exploded and extensive when public officials become engaged in corruption has had highly catastrophic using their positions and assigned authority consequences in socio-economic and to seek personally extraordinary incomes or political spheres of Thai society. Every enrichment. However, the literature from military coup d'etat was relatively linked broad studies in different regional areas of and justified on the basis of government the world has clearly suggested that corruption. less-developed and developing countries During the 1980s and 1990s, there are seriously disposed to this corruption was a movement in some western countries problems much more, due to their that the public sector had become too large socio-economic, political, cultural, or even and inefficient and that efficiency, productivity, historical backgrounds. Thailand as one quality, and accountability in public sector among these countries is inevitably faced could be improved by applications of with such tragic situation of comprehensive management ideas and practices of the and endemic corruption for years. When the private sector. Many of these countries international surveys on corruption such as radically reformed their public sectors Transparency International (TI) annually or guided by the concept and principles of periodically report the results of their New Public Management (Hood, 1991; corruption assessments, Thailand has Olsen et al., 1998; Christensen and always remained in a critical position for Laegried, 2001). Generally, the reforms corruption risks, hazards, and vulnerabilities emphasized some key aspects such as cost which have many negative implications control, financial transparency, decentralization for the country's credible status and moral of management authority, and the creation standards both in the society and among of quasi-market mechanisms and international communities. For example, in performance. The idea of the public sector 2009, TI ranked Thailand 86th in its ranking reforms consequently had tremendous scale among 180 countries with 'land' in the influence on some developing countries end. Introspectively, TI also indicated that

ปีที่ 9 ฉบบั ที่ 2 (กรกฎาคม - ธันวาคม 2559) 45 including Thailand. The institutional framework that can be applied to explain changes of the public sector that took place institutionalization of anticorruption also have important implications for reforms in Thailand's public sector. Second, anti-corruption as well. through this institutional analysis, it will The acknowledgement and awareness identify key areas of reform problems and of the corruption problem and its negative constraints. And, third, it will raise some impact on society and aspects of social life critical challenges for Thailand's anti-corruption has not been clearly articulated and realized reforms for future considerations if it can until recently, when Thailand has started fight the existing and widespread corruption to encounter solemnly and frequently effectively. disastrous situations and crises in economic development and political stability. 2. Toward a Theoretical Construct of Previously, political elites as well as high Anti-corruption Institutional Reforms proportion of civil servants in Thai Fundamentally, corruption or bureaucracies intentionally sought personal corruptive behavior can be broadly or b e n e fi t s a n d e n r i c h m e n t s t h r o u g h specifically classified. Based upon an widespread corrupt practices and sustaining institutional approach, Heilbrunn, (2000) corruptive environment. The spirit and has differentiated corruption to include attempts to fight corruption was not three types; grand corruption, petty corruption, a natural growth from moral consciousness and systemic corruption. Grand corruption or movement in Thai politics; rather, or high-level political or bureaucratic driving forces for anti-corruption often demands bribes for favorable treatment, originated from outside pressures such as specific policies, or access to a nation's academia, societal intellectuals, media, market. Petty corruption is where officers or or perhaps international movements. agents of the state perform their official The development and institutionalization of duties on conditions to extract money from anticorruption in the public sector in citizens, thus violating the property rights Thailand is therefore a subject this paper of the citizens they serve. And, in systemic wants to focus. It will try to investigate and corruption circumstances, both bureaucratic make a specific enquiry into three key and petty corruptions become norms of questions of the concept of institutionism; practice. Heilbrunn also claims that all first what is a structure setting of anticor- conditions of stated corruption occur within ruption in Thailand, how effectively these institutional arrangements that create rules, anticorruption agencies are performing norms of behavior, and enforcement their tasks, what are critical problems and mechanisms of these rules and norms. In constraints the agencies face, and what are addition, North (1990) critically observes important challenges for effective that where systemic corruption is found, institutional development for fighting these institutional elements are often corruption in the future. dysfunctional, permitting state officials The purpose of the paper is threefold. opportunities for corruption. With the focus First, it attempts to explore a theoretical on corruption and development linkages,