Anti-Bribery Laws in Thailand

Published: 2019-10-16 07:30:00
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Thailand is a nation that is highly attractive to foreign investors as seen in the increase in foreign direct investment in the nation since the turn of the 21st century. Additionally, FDI is an important component in the assessment of the nations economic growth and stability to the extent that many resources have been dispensed to increase the nations attractiveness to foreign investors (Ramirez, 2016). Many multinationals have found it increasingly easy to invest in Thailand due to the instalment of modern legal frameworks in addition to cheaper costs while installing new projects in the nation. Thailand also offers a favourable geographic location as it acts as a gateway to many other markets in South East Asia. The figures available from the UNCTAD World Investment Report 2014 show that the nation is one of the top eight priority destinations for foreign direct investment during the year 2001 to 2016 (Ramirez, 2016). It is the largest recipient of foreign direct investment in East Asia as well as South East Asia. While much of the global business and corporate environment was being affected by the effects of the financial turmoil and economic meltdown, Thailand kept on registering increases in FDI. The Thailand Board of Investment (BOI) has also seen a rise in investments from the domestic front as well (Ramirez, 2016). Projects that were registered in the nation since 2014 have shown that people are increasingly showing confidence in the governments strategies to increase the level of investment in the nation. However, some challenges come with such a huge influx of FDI in the nation. The current government policy is focused firmly on a plan expected to span seven years with the view of encouraging further investment. Such a plan stands the risk of failing to materialize should the investors lose confidence in the nations ability to fight corruption and bribery allegations rife in the nation (Business Anti-Corruption Portal Website, 2016).

For many years, the focus of corruption investigations and mitigation strategies has mostly been based on the nations public sector. However, the current levels of globalization and international business projects call for a need to review the measures taken by governments to curb corruption both domestically and internationally. According to Transparency International, Thailand is positioned 85th in the Corruption Perception Index down from the 60th positioned in a survey that included 175 countries (Ramirez, 2016). About the entire economic impact of corruption on the global scene, the World Economic Forum estimates that corruption equals approximately 5% of the global GDP with more than US$1 trillion being paid in bribes every year according to the World Bank (Ramirez, 2016). These figures go ahead to show that corruption in the form of bribery should be tackled in more dynamic ways as opposed to the measures that have been employed by most nations including governments (Yeoh, 2011).

The current domestic laws responsible for curbing corruption in Thailand include the Thai Penal Code BE 2499, the Offence of State Organization Staff Act BE2502, the Rules of the Office of the Civil Service Commission on the Code of Ethics for Civil Servants BE 2537, the Organic Act on Counter Corruption BE 252, and the Code of Moral and Ethics of Policies BE 2553. Another domestic law used to fight anti-corruption offences is the Notification of the Office of the National Counter Corruption Commission Concerning the Provisions of the Acceptance of Property or Any Other Benefits on Ethical Basis by State Official BE 253. While these laws have helped to curb various forms of corruption offences, there is a lot to be desired when it comes to curbing corruption that originates from international players such as foreign government officials and high-ranking executives from multinational companies (Mutebi, 2008). In looking at the UKs Bribery Act of 2010, there is a clear message communicated to all international agents that may be persuaded to bribe officials and private contractors as well. The clearest indication of Thailands commitment to fighting corruption on the world stage is seen its decision to become a signatory to the United Nations Convention against Corruption (UNCAC) as of 9th December 2003 and the ratification of the same on 1st March 2011. However, the nation is yet to enact fully the full breadth of the domestic laws needed to ensure complete compliance with the obligations of the UNCAC.

In looking at the Bribery Act 2010, the U.K has taken a keen interest in ensuring that bribery is curtailed both domestically and internationally (Gauci & Fisher-Bristows, 2016). It was introduced to update specifically and enhance all forms of U.K laws that target bribery. Such a strategy was seen to reflect the OECD anti-bribery convention that took place in the year 1997 to better address the growing occurrence of bribery accusations across many international players. As of now, the Bribery Act is considered to be the strictest legislation on the international front, especially due to the introduction of new strict liability offences for partnerships and companies that fail to prevent all forms of bribery within their jurisdictions (Yeoh, 2011). One major aspect of this corporate criminal offence is that it places a burden of proof on companies to show that they have the necessary procedures need to curtail opportunities for the occurrence of corruption such as bribery (Yeoh, 2011). The Act has also served to introduce a new arena of strict penalties that target active and passive bribery allegations for companies as well as individuals. In essence, four prime offences have been created by the Bribery Act 2010 two general offences that cover the offering, promising, or giving of an advantage (Yeoh, 2011). It also covers any form of requesting, agreeing to receive, or accepting of an advantage. Another offence created by the law is the civil offence of bribery of a foreign public official. Organizations will also be committing another offence if they fail to prevent a bribe from being paid with the intention of obtaining or retaining resources or business. However, with regards to this crime, a commercial organize can effectively avoid criminal charges if they may be able to prove that they had instituted adequate programs designed at preventing bribery from taking place in the first place (Yeoh, 2011).

The Bribery Act is considered to be extremely wide in its reach and scope in comparison to other international players such as the United States. The U.S Foreign Corrupt Practices Act (FCPA) is restricted to the bribing of foreign public officials while the Bribery Act seeks to enhance its mandate and scope of operations to include all forms of commercial activities, thus eliminating the need for the public or private debate (Gauci & Fisher-Bristows, 2016). One such implication of this strategy is that all corporations that have already adopted FCPA-compliance programs, as well as best practices, may need to update their business structures and strategies should their business interests be situated in the U.K as well (Yeoh, 2011). It is this ability of the Bribery Act to curtail a more lethal form of corruption in the private sector that Thailand should aspire to institute in its governance structures if it is supposed to improve its economic outlook in the long-run (Tungsuwan, 2016). Thailands policies do not have such a scope as the one afforded by the Bribery Act, and this creates the opportunities for bribery allegations to persist within the private sector (Mutebi, 2008).

Recent changes to the Thai anti-bribery laws have been designed to extend their reach to cover foreign officials and bribery that has taken place through associated persons (Ramirez, 2016). These amendments occurred in the Organic Act on Counter Corruption BE 252 (1999). A new suite of bribery offences has been created targeting foreign public officials, international organization workers, and agents of the state who may have transpired to commit various forms of anti-corruption offences such as the asking or acceptance of bribes (Thongpakdee et al., 2016). These crimes are also designed to target individuals and legal entities that offer or give bribes to foreign officials, state officials, or international organizations. In addition to these amendments, a severe penalty regime has also been instituted by the Thai government to address the occurrence of these offences includes life incarceration as well as capital punishment (Ramirez, 2016).

For many years, the Thai bribery laws did not cater for foreign officials. As such, these amendments are an attempt to target the international players such as foreign officials and international organization workers (Quah, 1982). In the past, the giving of bribes to Thai officials was catered for by the Penal Code, and this was not enough to target those who give bribes to both Thai and foreign officials. The National Anti-Corruption Commission (NACC) was established by the Organic Act to deal with corruption activities that may affect agents of the state as well as state enterprises and officials. The recent amendments instituted in the Organic Act effectively expand the power of the NACC to deal with corruption offences committed by foreign officials (Thongpakdee et al., 2016). The term foreign official is defined as an individual who holds a legislative, executive, administrative, or judicial position for a foreign country or any other person who works for the government of a foreign country (The Guardian Website, 2015). These include employees of a public body, or state enterprise and may hold either elective office or be appointed by a specific authority. It also means that a person who holds a permanent or temporary position or receives salaries or any other benefit from the government is also liable for anti-corruption offences. On the other hand, the term international organization worker is defined by the amendments as a person who works for an international organization (Thongpakdee et al., 2016). The person may also be appointed by an international organization to act on its behalf. From these definitions, the Organic Act has instituted new penalties that effectively punish employees or agents or associated company or a person that bribes a Thai or foreign official on behalf of the enterprise (Thongpakdee et al., 2016). It is this aspect that makes the Thai anti-bribery laws to be in line with the laws set forth by the U.K Briber Act.

The institution of these laws is regarded as being tough on foreigners since they carry maximum penalties of capital punishment to them. However, these laws are primarily seen as a politically charged strategy designed to curtail the political ambitions of the former Prime Minister Thaksin Shinawatra (The Guardian Website, 2015). Based on this point of view, it may be possible that the process of creating such laws was not exhaustive enough to cover many other areas responsible for the generation of bribery offences. There are also issues of contention with regard to the legislation concerned with the death penalty. Organizations such as Amnesty International are not satisfied with the ability of the Thai government to consistently expand the scope of the death penalty in the legal books (Caiden, 2011). Additionally, the death penalty is not applicable to the givers of bribes, thus suggesting that the process of construction of such a law was not necessarily well thought-out by the parties concerned. While the death penalty may act as a deterrent for public officials to refrain from taking bribes, it does not necessarily hinder officials from initiating the process of bribery. As such, it cannot be said that these new laws are systematically designed...

sheldon

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