Thailand

Thailand Corruption Report

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Snapshot

Thailand_230x152.pngThere are high risks of corruption in most sectors in Thailand. Even though Thailand has the legal framework and a range of institutions to counter corruption, companies may regularly encounter bribery or other corrupt practices. Ousted Prime Minister Yingluck Shinawatra has been put on trial for losses to the state allegedly amounting to at least USD 8 billion stemming from a rice subsidy scheme. The military junta that overthrew the government in 2014 has further entrenched its power and corruption is said to have worsened under the military regime. The Organic Law on Counter Corruption criminalizes corrupt practices of public officials and corporations, including active and passive bribery of public officials. The Penal Code also criminalizes embezzlement and trading in influence. Anti-corruption legislation is inadequately enforced, and facilitation payments and gifts are common in practice.

Last updated: September 2017
GAN Integrity

Judicial System

Corruption in the judiciary is a high risk for businesses operating in Thailand. Businesses indicate that irregular payments and bribes are commonly made in order to obtain favorable judicial decisions (GCR 2015-2016). A little over one in five Thai believe most or all judges are corrupt (GCB 2017). Until the military coup of 2014, Thailand had a constitutionally independent judiciary (BTI 2016). However, under the military, the judiciary has been extremely politicized and has no oversight over the executive branch (BTI 2016). Companies express insufficient confidence in the independence of the courts, and perceives the legal framework to be inefficient when it comes to settling disputes and challenging regulations (GCR 2016-2017). The legal process in Thailand tends to be slow and litigants or other third parties sometimes affect judgments through extra-legal means (ICS 2017). Thai law firms have alleged that courts have occasionally refused to enforce international arbitration awards following interpretations which are not in accordance with international norms (ICS 2017). Enforcing a contract in Thailand is less time-consuming and less than half as expensive compared to the regional average (DB 2017).

Thailand is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and it is a member state to the International Centre for the Settlement of Investment Disputes (ICSID). 

Police

Corruption is pervasive in Thailand's police force and presents businesses with high risks. Almost four out of five Thai believe most or all of the police to be corrupt (GCB 2017). The security apparatus has a reputation of being the most corrupt institution in the country, partly due to its entanglement in politics and an entrenched patronage system (The Guardian, Nov. 2014). Police impunity is also reported to be a problem (HRR 2016). On a more positive note, companies express moderate confidence in the reliability of police services (GCR 2016-2017). Businesses do attribute significant costs due to crime and violence, yet only a quarter of firms pays for security, which is well below the regional average (GCR 2016-2017, ES 2016).  

A provincial police commissioner was removed from his post in 2017 for allegedly demanding bribes from police officers that wished to be promoted (Thai PBS, Jun. 2017).

Public Services

There is a high risk of corruption when dealing with public services in Thailand. Irregular bribes and payments are common, and inefficient government bureaucracy and government instability are cited as the most problematic factors for doing business (GCR 2015-2016, GCR 2016-2017). About one in six companies indicate they expect to give gifts to officials to "get things done", but only about one in twenty companies expect giving gifts in order to secure an operating license (ES 2016). Half of Thai believe most or all local government councilors are corrupt (GCB 2017). Corruption among public officials is fueled by low wages, and a cultural inclination to accept gifts as a natural part of doing business (ICS 2017). Facilitation payments to civil servants responsible for regulatory oversights remain problematic; companies that refuse to pay may be at a competitive disadvantage relative to other firms in the same field (ICS 2017). Notwithstanding, foreign firms that adhere to the strict guidelines of the Foreign Corrupt Practices Act (FCPA) acknowledge that they are able to compete successfully in Thailand (ICS 2017). Companies are also advised that it is much easier to refuse corrupt transactions from the start rather than later when the company has shown a willingness to engage in these practices (ICS 2017). Starting a business requires fewer steps and is significantly less costly than elsewhere in the region (DB 2017). A consolidated website and a hot line with information on licenses and other procedures is available. 

Land Administration

There is a high risk of corruption in Thailand's land administration. Thailand's land administration is, reportedly, the most corrupt part of the bureaucracy; officials frequently ask for facilitation payments to speed up services (The Nation, Nov. 2014). A third of companies indicate they expect to give gifts when getting a construction permit (ES 2016). Companies report having insufficient trust in Thailand's ability to adequately protect property rights (GCR 2016-2017). Foreigners are allowed to own land under Thai law, but at lower amounts than Thai citizens and subject to restrictions (Open Development Mekong, Nov. 2016). Expropriation is allowed under Thai law, provided due process and compensation (ICS 2017). There are reports about businesses in conflict with the government over land title authenticity in areas designated by the government as national park land (ICS 2017). Underlying causes of these conflicts include usage of forest land prior to their declaration as forest reserves, migration due to competition over economic resources, speculation and collusion, and policy ambiguity and overlap (Open Development Mekong, Nov. 2016). Registering property in Thailand requires four different procedures, which is better than the regional average; the time required to do so is only six days, which is a small fraction of the time required elsewhere in the region (DB 2017).

In southern Thailand, local villagers have accused a palm oil company of illegally occupying and cultivating palm oil trees on a large plot of land in the Chai Buri District of Surat Thani Province (Al Jazeera, Aug. 2017). The villagers were embroiled in a legal battle with the palm oil company between 2005 and 2014, when the Supreme Court in Bangkok ruled in favor of the villagers. A land deed was promised by the government, but has failed to materialize (Al Jazeera, Aug. 2017).

Tax Administration

There is a moderate risk of corruption in Thailand's tax administration. Businesses report that bribes and irregular payments in the process of annual tax payments are common (GCR 2015-2016); yet, less than one in ten businesses indicate they expect to give gifts when meeting with tax officials (ES 2016). Over a third of Thai believe tax officials are corrupt (GCB 2017). Tax evasion is common among small and medium sized enterprises; the government is attempting to increase the number of tax-compliant companies using a variety of incentives (Bangkok Post, Mar. 2017). The number of tax payments businesses make in Thailand is in line with the regional average, but the time required to do so is significantly higher (DB 2017).

King Power International, the operator of the duty free franchise at Bangkok's Suvarnabhumi airport, has allegedly failed to pay the government the agreed 15 percent of its revenue, amounting to an embezzlement of THB 14 billion (The Guardian, Jul. 2017). King Power allegedly colluded with airport employees to transfer only 3 percent of duty free taking to the government (The Guardian, Jul. 2017).

Customs Administration

There is a high risk of corruption in Thailand's customs administration. Burdensome import procedures and corruption at the border are obstacles to doing business in Thailand (GETR 2016). Irregular payments are commonly exchanged, both in import and export (GETR 2016). The clearance process is considered to be moderately efficient, but the time-predictability of import procedures remains poor (GETR 2016). Businesses voice concerns about the amount of discretionary power exercised by customs authorities and the arbitrary application of Thailand's transaction valuation methodology (ICS 2017). An amendment to the Customs Act was passed in 2017, but the law does little to tackle the issue of "reward" system, which grants customs officials monetary rewards for reporting or otherwise successfully uncovering instances of customs evasion and customs avoidance (ICS 2017). The law reduced the "reward" from a generous 55% of the penalty recovered to 40%, and is limited to THB 5 million (EY 2017). According to a letter sent by the US Embassy in Thailand, the practice can lead to conflicts of interest when customs officers have a large interest in collecting large payments rather than ensuring effective customs administration. The costs and time required for border compliance procedures in Thailand are significantly below regional averages (DB 2017).

Allegations of import duty and tax evasion schemes involving super cars being stolen from the UK and shipped to Thailand have surfaced in 2017 (Sky News, Jun. 2017). The value of many of the cars was under-declared (Sky News, Jun. 2017). Nine customs officers are under investigation for alleged misconduct in connection to the illegitimate return of nearly THB 20 million in taxes to two companies involved in the import of super cars (Bangkok Post, Jun. 2017). 

Public Procurement

Corruption risks are high in Thailand's public procurement sector. Businesses indicate that bribes and irregular payments in the process of awarding government contracts are common (GCR 2016-2016) and more than two out of five businesses expect to give gifts in order to secure a government contract (ES 2016). Companies report that the diversion of public funds and favoritism in decisions of government officials are very common (GCR 2016-2017). Procurement fraud most frequently occurred during quote and bid solicitations, vendor selection, vendor contracting, and maintenance process (pwc 2016). Reported fraud during the payment process doubled between 2015 and 2016 (pwc 2016). Respondents report of bid rigging, where employees provide inside information or confidential pricing knowledge leading to unfair competition (pwc 2016). The regulatory framework for public procurement is weak, fragmented and does not reflect international legislative practices (UNDP, Jan. 2015). Collusion among bidders is forbidden (ICS 2017). State-owned enterprises compete with private enterprises under the same conditions in terms of market share, products/services, and incentives in most sectors, but with some exceptions, such as the fixed line operation in the telecommunications sector (ICS 2017).

In one recent case, the engineering arm of Rolls-Royce has been accused of paying over USD 11 million in bribes to various officials at national oil company PTT and subsidiary PTTEP over the span of a decade (FT, Jan. 2017). Rolls-Royce also stands accused of paying over USD 36 million in bribes to officials at national airline Thai Airways in a series of aircraft engine deals spanning over two decades (FT, Jan. 2017). 

In another high-profile corruption case, former Prime Minister Yingluck Shinawatra, ousted in the military coup of 2014, was indicted a year later on charges of negligence in failing to prevent large losses and corruption in a rice-buying scheme in which the government would buy rice from farmers above market rates (BBC, Aug. 2017). The military junta alleges the losses to the state amounted to at least USD 8 billion (BBC, Aug. 2017). Ms. Yingluck and many of her supporters believe the trial is politically motivated (BBC, Aug. 2017). Ms. Yingluck is said to have fled to Dubai days before a verdict in the case was to be handed down in August of 2017 (Reuters, Aug. 2017). Companies are recommended to implement special due diligence procedures to counter the likelihood of encountering corruption in the procurement process.

Natural Resources

Corruption is a big risk in the fishing industry. A 2017 report by the United Nations severely criticized Thailand for failing to stamp our slavery and human rights abuses in its fishing sector (UNILO 2017). The practice is facilitated by widespread corruption among government officials; in one case, local officials protected and assisted a gang accused of torturing and executing migrant workers who attempted to flee (UNILO 2017).

Legislation

The interim constitution installed by the military junta was replaced by a new voter-approved constitution in 2017. The anti-corruption framework remains intact and enforceable pursuant a Military Junta Notification, which orders the Organic Act on Counter Corruption (OACC) to remain in force (HSF 2015). Enforcement, however, varies and the prosecution of high-level corruption is reportedly politically motivated (BTI 2016). Corrupt offenses are captured primarily in the Organic Act, the Penal Code and the Offences Relating to the Submission of Bids to State Agencies Act (unofficial translation). The Organic Act on Counter Corruption criminalizes corrupt practices of public officials, expcet for the acceptance of benefits "on an ethical basis" in accordance with the NACC Supplemental Rules. Facilitation payments are illegal (CMS 2016). Gifts below THB 3,000 are allowed, even multiple gifts worth less than THB 3,000 each are allowed if they are given for different reasons (TG 2016). Officials may accept gifts worth more than THB 3,000 after filing a report with the state's official supervisor (GIR 2017). This procedure was implemented to facilitate cultural gift giving, but it has caused a lot of confusion about what may be acceptable (GIR 2017). The Thai Penal Code criminalizes active and passive bribery of public officials. Active bribery concerns benefits to public officials with the aim of inducing delays or non-performance of an act which conflicts with their position. Bribery of foreign officials is captured under the OACC. Penalties for bribing an official include imprisonment of up to five years and a fine of a maximum of THB 10,000 (CMS 2016). Passive bribery may, theoretically, incur the death penalty or life imprisonment and/or a fine of up to THB 40,000 (CMS 2016). Individuals, as well as legal entities, may be prosecuted for offenses concerning corruption, however, there is no example of a prosecution of a company (CMS 2016). Companies and their senior management may now be prosecuted for bribes made by their employees that benefit the company (GIR 2017). Companies may be fined up to twice the amount of the benefits received from the bribes offered by third parties (NRF 2016). Private bribery is not captured under the OACC (NRF 2016). The Act on Offences Relating to the Submission of Bids to State Agencies defines corrupt practices in relation to public procurement such as bid collusion. The government passed the Promulgation of the Government Procurement and Supplies Management Act, its first comprehensive procurement act (Baker McKenzie, Feb. 2017). The law applies to all government agencies, local authorities, and state-owned enterprises (SOEs) (ICS 2017). The Promulgation is to take effect in August 2017 and related legislation is expected to be passed within a year (Baker McKenzie, Feb. 2017). Finally, the Anti-Money Laundering Act (AMLA) prohibits money laundering and is implemented by the Anti-Money Laundering Office. Protective measures and rewards are offered for whistleblowers (NRF 2016). The Licensing Facilitation Act targets red tape and corruption by providing a one-stop shop service through an information center on public services that deals with licensing procedures and complaints against state agencies.

Thailand is a signatory to the United Nations Convention Against Corruption (UNCAC) but not the OECD Anti-Bribery Convention.

Civil Society

Press freedom has continued to deteriorate in Thailand following the military coup of 2014 (FotP 2016). The National Council for Peace and Order (NCPO) has aggressively enforced defamation and lèse-majesté laws (FotP 2016). The NCPO has banned criticism of its rule and harassed, attacked, and shut down various media outlets (FotP 2016). Self-censorship among journalists has increased (HRR 2016). International media in Thailand has continued to operate relatively freely, but new visa restrictions on journalists are feared to have a chilling effect on their reporting (HRR 2016). The Internet and press are both considered "not free" (FoN 2016; FotP 2016).

The military government has exercised unchecked powers to impose restrictions on civil and political rights in order to suppress dissent (FitW 2017). Freedom of assembly and association under the 2016 Constitution is limited by restriction enacted to "protect public interest, peace and order, or good morals, or to protect the rights and liberties of others" (HRR 2016). Civil society participation has been extremely limited and restrained by force since the military coup (BTI 2016). Civil society members supportive of the coup have been appointed to positions within the regime (BTI 2016).

Sources

Topics: East Asia & The Pacific