WITNESS IMMUNITY MEASURES IN CASES OF THE NATIONAL ANTI-CORRUPTION COMMISSION

Abstract

In criminal cases involving corruption and misconduct under the authority of
the National Anti-Corruption Commission (NACC), the Organic Act on Anti-Corruption B.E. 2561 (2018) grants the NACC the discretionary power to designate individuals as witnesses under Section 135. This is a measure aimed at suppressing corruption. The criteria for such designations are outlined in the NACC’s Notification on the Criteria, Methods, and Conditions for Designating Individuals as Witnesses Without Prosecuting Them, B.E. 2561 (2018). However, several issues have been identified, such as vague and broadly framed criteria
for consideration, the fact that the discretion lies solely with state officials—rather than allowing the offender to request to become a witness—and the absence of a mechanism
to review the exercise of such discretion. Additionally, there is the issue of protection of witness rights, as the existing safeguards are insufficient to ensure genuine protection. When compared with the designation of offenders as witnesses in general criminal cases—as governed by police regulations and the regulations of the Office of the Attorney General—as well as with foreign laws, such as those of the United Kingdom and the United States, it is found that those systems establish clearer and more narrowly defined criteria. These include criteria regarding
the sufficiency of evidence, the characteristics of the offender, risk factors, and the potential impact of designating the individual as a witness. Furthermore, external review processes for the use of such discretion are in place.

            Therefore, this study proposes amendments and improvements to the Organic Act
on Anti-Corruption B.E. 2561, the aforementioned NACC Notification, and the Regulations
of the Office of the Attorney General on Prosecutorial Procedures in Corruption
and Misconduct Cases B.E. 2562 (2019). The goal is to establish clearer criteria for consideration, implement a mechanism for reviewing the NACC’s discretion in witness designation,
and introduce safeguards for witness rights—especially in instances where criminal or disciplinary proceedings may still be pursued against a designated witness. These proposals aim to make the witness designation process more effective and to provide genuine protection for witnesses.