Anti-bribery and corruption trends in South East Asia

Maurice Burke and Chalid Heyder

ASEAN is an environment of differing economic, political, and cultural sophistications, where languages and habits melt, merge, and intersect. The anti-corruption enforcement landscape reflects this.

Despite the region’s differences, there are trends. Traditionally, enforcement focused on individuals; the penalties were often harsh and well publicized. Take former Thai tourism official Juthamas Siriwan, sentenced to 50 years in prison, and her daughter, sentenced to 44 years. They were also ordered to repay US$1.81m in bribes.

In contrast, pipe bomber Wattana Phumret, who planted a nail bomb in an army-run hospital, was jailed for 27 years.

The focus on individuals, which may continue, can be motivated by political plots to exercise power. Thailand suggests this through its pursuit of former Thai prime minister Yingluck Shinawatra, her brother former prime minister Thaksin Shinawatra, and the August 2017 sentencing of former commerce minister Boonsong Teriyapirom.

A new focus on corporate liability

Recently, however, across South East Asia, there’s greater attention toward corporates. Laws enforcing corporate liability in Thailand have developed, introduced by a 2015 amendment to the Organic Act on Counter Corruption. And a strict liability corporate offense for failure to prevent bribery has emerged. Before, it was unclear whether corporates could be prosecuted for such an offense, and this affected enforcement efforts.

The Thai Criminal Code adds that active and passive bribery are banned. But like the U.S. Foreign Corrupt Practices Act, a narrow exception is made for facilitation payments.

Indonesia, Singapore, and Malaysia are examples of countries where corporates can be liable for the acts of their intermediaries. But such laws are rarely and inconsistently enforced. Corporate prosecutions are rare in Singapore despite liability for companies being espoused in the Prevention of Corruption Act and in Singapore’s Penal Code.

In Malaysia, meanwhile, under domestic law, a person includes a body of persons, corporate or unincorporated. The Malaysian Anti-Corruption Commission Act and other statutes apply to companies and to individuals. And companies can be liable for the acts of their intermediaries, like in Indonesia, Thailand, and Singapore.

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