11. Thailand
This chapter presents the country profile for Thailand. It provides an overview of the current de jure requirements for the institutions, tools and processes of regulatory governance and, where possible, how these have been implemented in practice. The profile focus on three aspects of regulatory governance pertinent to the past, present and near future of regulatory reforms in the ASEAN region. The first is whole-of-government approaches to regulatory policy making, including national and international commitments to better regulation that are driving domestic reform processes. The second is the use of good regulatory practices, including regulatory impact assessments (RIAs), stakeholder engagement and ex post review. The third is approaches to digitalisation, or how countries are using digital tools to respond to regulatory challenges, and is the newest frontier for better regulation reforms in both ASEAN and OECD communities. The information contained in this and the other profiles serves as the basis for the analysis of trends in regulatory reform presented in Chapter 1.
Regional focus
Thailand is a signatory to trade agreements which include a variety of provisions on the use of better regulation, including chapters on the use of good regulatory practices and standards. Thailand ratified the Regional Comprehensive Economic Partnership (RCEP) agreement in in February 2021, becoming the second ASEAN member state to do so after Singapore. While Thailand has not signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which also contains provisions on good regulation, the government has shown interest in joining and has planned to join talks on membership of the CPTPP (Reuters, 2021[1]).
Thailand has also been taking steps to contribute to the ASEAN Single Window (ASW), which aims to expedite cargo clearance and promote ASEAN economic integration by enabling the electronic exchange of border trade-related documents among ASEAN Member states (ASEAN Single Window, 2018[2]). The objectives of Thailand’s National Single Window are to 1) Facilitate Import, Export, and Logistics; 2) Facilitate inland and cross-border movement of goods; 3) Reduce National Logistics Cost; and 4) Increase National Competitiveness (Thai Customs Department, 2018[3]). The 2nd Strategy of the 3rd Strategic Plan for Thailand logistics (2017-2021) calls for full operation of the Thailand NSW and to support the development of the NSW to completely enable G2G, G2B transactions as well as to link the system further with the ASEAN Single Window (Thai Customs Department, 2018[3]).
National focus
Thailand has continued to commit to improving regulatory quality within the country. Good regulatory practices were featured prominently in the 2017 Constitution of Thailand and are also woven into national strategies. The Thai National Strategy (2017-2036), which is the country’s first national long-term strategy developed pursuant to the Constitution and is being pursued to ensure that the country achieves its vision of becoming “a developed country with security, prosperity and sustainability in accordance with the Sufficiency Economy Philosophy” with the ultimate goal being all Thai people’s happiness and well-being (OSMEP, n.d.[4]). The 20-year National Strategy (2017-2036) includes the National Strategy on Competitiveness Enhancement, which includes the following provisions that have impacts on burden reduction efforts in Thailand:
4.5.2. Facilitating easier access to financial services and assistance by promoting entrepreneurs to gain access to needed financial services through provision of funds and promotion of reliable financial service channel establishment;
4.5.3. Improving access to markets by ensuring that entrepreneurs have opportunity to gain access to domestic and international markets, in accordance to their ability and capacity through the promotion of brand and product identity;
4.5.4. Facilitating information access by providing opportunity for entrepreneurs to gain access to essential and updated data and information needed for effective business planning including data obtained via big data technology, in order to further develop existing and new businesses; developing entrepreneurial data service centres as the key channel in data and consultation provision to entrepreneurs and business owners;
4.5.5. Adjusting roles and improving access to public services by developing and integrating government mechanisms to help develop entrepreneur to have skills and capacity required to sustainably compete in the market, with key scopes covering easy business entry, application and permit issuance, asset registration, loan approval, investor protection, tax payment, and international trade; developing national quality assurance system for products.
Good regulatory practices are also noted in the Twelfth National Economic and Social Development Plan (2017-2021). The Plan states that rules and regulations must be amended to enhance competitiveness, improve efficiency and strengthen fairness in service provision for consumers and the private sector. To amend these rules, regulations and laws, the Plan calls for appropriate use of regulatory impact assessment tools in order to facilitate the efficient execution of the Plan at every level. The role of regulation is also highlighted in the “Thailand 4.0” strategy, which sets the four objectives of 1) Economic Prosperity; 2) Social well-being; 3) Raising Human Values; and 4) Environmental Protection.
OECD (2020) notes that Thailand has embarked on several high-level reforms and policy strategies that rest on initiatives stemming from over a decade ago. In 2017, the new Constitution of the Kingdom of Thailand (“the Constitution”) set out explicit principles of transparency, accountability, integrity, stakeholder participation, access to information and data, and tools of Good Regulatory Practice (GRP). Section 77 of the 2017 Constitution establishes core principles for good regulatory governance and formalises the deployment of GRPs across the State institutions and throughout the decision-making process (OECD, 2020[5]; 2022[6]). Thailand has also passed several laws requiring the use of better regulation in policy making across the Thai administration. These include (OECD, 2020[5]):
State Administration Act (No. 5), B.E. 2545 (2002). Section 3(1) of this act established the expectation that public agencies function under the principles of good governance.
Royal Decree on Criteria and Procedures in Good Governance, B.E. 2546 (2003). The decree was introduced by the government as a way to improve the quality and performance of public administration across the different ministries, agencies, and state institutions in the country and lift up the quality of services provided to citizens and businesses
Royal Decree on Revision of Law, B.E. 2558 (2015), also known as the “sunset law”. This law requires that the relevant authority conduct a review of the appropriateness of the law every five years since its implementation.
Licensing Facilitation Act, B.E. 2558 (2015), which helps focuses on building a paperless government and reducing the administrative burden on licensing procedures. The Act requires each authority to review the laws concerning their respective licensing requirements and determines whether such licensing requirement should be repealed or replaced by another measure every five years since the licensing requirement has come into force.
Act on Legislative Drafting and Evaluation of Law, B.E. 2562 (2019) implements the constitutional requirement to use GRPs (under Section 77 of the Thai Constitution) into Law. This law seeks to prescribe rules for drafting legislation, including the use of regulatory impact assessments (RIA), stakeholder engagement, and ex post review, and establishes the Office of the Council of State as the regulatory oversight body for the Thai Administration.
Digitalisation of Public Administration and Services Delivery Act, B.E. 2562 (2019) is regarded as the first digital government law in Thailand that aims to accelerate digital transformation in the public sector with a solid legal and regulatory framework. It focuses on three areas: i) digitalisation of processes and services with a citizen-centric approach; ii) data integration among government agencies; iii) open government data in machine-readable formats. The plans, rules and standards that build on these legal provisions are under development (OECD, 2022[7]).
Regulatory impact assessments
The 2019 Act on Legislative Drafting and Evaluation of Law that came into force in November 2019 has provisions that led to Office of the Council of State (OCS) issuing Guidelines on Regulatory Impact Assessment in November 2019 (OECD, 2020[5]). While the minimum requirements for RIA are one of the most notable improvements brought about by the 2019 Act, its scope at the time was limited to the drafting of primary laws (OECD, 2020[5]). In March 2022, the Prime Minister issued a Ministerial Regulation entitled Prescribing Draft Regulations which Must Conduct Public Consultation and Impact Assessment, B.E. 2565, which came into force in September 2022 and extends the requirement for RIA under the 2019 Act to draft regulations that:
1. Prescribe rules, procedures or conditions involving applications for license, permission or approval, registration, enrollment, notification, application for Atchayabat or Prathanabat;1 or,
2. Require people to do anything or by any means in their occupations or livelihoods, or in contacting a government agency, or to submit any documents to a government agency, which are not draft regulations according to (1).
The OCS issued Guidelines on Regulatory Impact Assessment in November 2019, which was in compliance with the provisions of the Act on Legislative Drafting and Evaluation of Law. With these guidelines, the OCS contributed to clarifying not only the nature of RIA as a regulatory tool, but also the implication of mainstreaming such a tool throughout the Thai regulatory process (OECD, 2020[5]). Considerable improvements brought about by the RIA Guidelines include the indication for RIA drafters to express policy objectives using measurable performance indicators; and to incentivise the use of quantification of impacts (especially by means of the Standard Cost Model formula) (OECD, 2020[5]). The Guidelines put adequate emphasis on requesting RIA drafters to describe the societal issue at stake (problem definition) and to spell out the reasons for the needed government intervention; the new RIA template attached to the Guidelines requires the Head of the Department responsible for the proposal to sign off on the RIA report. The Guidelines are accompanied by a template for submitting a RIA to the OCS for scrutiny; and a short “manual” with explanations and standards for each section of the template. The OCS also provides advisory services for officials in the Thai Administration to support the implementation of the good regulatory practices.
OECD (2020[5]) also notes that when drawing up the new RIA Guidelines, the Thai Government used this as an effective opportunity to address self-diagnosed recurring challenges in the national legislative and regulatory approach. The Government is particularly concerned with addressing the four pressing issues: excessive recourse to licensing and permit schemes; overuse of committee-based approaches; excessive recourse to applying criminal sanction schemes; and unclear / ambiguous use of discretion by government officials. The Guidelines and template prompt RIA drafters to address those issues, drawing their attention to the possible issues in case they consider opting for measures likely to contribute to perpetuating those shortcomings. At the same time, the RIA Guidelines assist future staff in oversight bodies as well as external stakeholders with reviewing RIA reports critically and constructively.
Moreover, OCS has also made significant attempts to align their guidelines with international good practice. OECD (2020[5]) notes that according to the 2019 Act that implements the 2017 Constitution, Section 77, the Office of the Council of State (OCS) has been entrusted with the role of regulatory oversight body for the Government of Thailand. This includes preparing the guiding instruments to implement the new constitutional principles and procedures set out in the Act, as well as also co-ordinating the initial stages of the implementation of the reform. The OCS will also scrutinise RIAs, consultations and ex post reviews. Oversight is also mandated to the Law Reform Commission under the 2019 Act.
Thailand has also made use of digital tools to enhance use of RIA in the country. Thailand launched the public consultation portal law.go.th in 2021, which serves as a centralised portal for all consultations in Thailand, and a central legal database was planned for launch in Q1 2022.
Stakeholder engagement
Thailand’s legal and regulatory frameworks to enable stakeholder consultation in the legislative process are considered to be of good quality (OECD, 2022[7]). The legal basis for stakeholder consultation in regulatory processes developed from 2003 to 2005 with the enactment of the Regulations of the Office of the Prime Minister on Public Consultation, B.E. 2548 (2005), which obliges public sector organisations to conduct credible consultations with the public before any major regulation is made. This law was further reinforced by Section 77 of the 2017 Constitution and a resolution in 2017 that stipulates all draft legislation to be published on the public consultation portal (law.go.th) for a minimum of 15 days before any government agency can send the draft act and impact assessment report to the Secretariat of the Cabinet (OECD, 2022[7]).
OECD (2020[5]) notes that the 2019 Act on Legislative Drafting and Evaluation of Law also consolidates the stakeholder engagement tool such that the government agency has to consult its stakeholders regularly in order to review the outcomes of its law (every 5 years at least). The Act defines stakeholder broadly. Under the 2019 Act, stakeholders, including other government officials, must be consulted in the drafting of legislation, and in addition, legislation must be inputted into the central system, which can be reviewed by other government agencies. This requirement states that once the agency has a draft of the proposing bill already, it must upload the draft to the central stakeholder consultation website for a minimum period of 15 days. The requirements for consultation under the 2019 Act were extended to draft regulations according to the Ministerial Regulation entitled Prescribing Draft Regulations which Must Conduct Public Consultation and Impact Assessment, B.E. 2565 that came into force in September 2022 (see more details in the RIA section above).
OECD (2020[5]) also notes that all State agencies have an open-door policy for receiving public opinions and generally have introduced at least one communication method to receive public opinions and petition for grievances. Anecdotal evidence suggests that some agencies engage in regular focus groups and workshops with stakeholders. Some ministries and agencies also have their own system of (tripartite) working committees through which sectoral policy issues are discussed and elaborated thanks also to stakeholders’ inputs and feedback. In such contexts, letters are sent to business and civil society organisations and individual stakeholders and meetings are organised with various degrees of formality.
The 2019 Act establishes a general rule requiring the proposing State agency to consult with stakeholders before the draft law is written, but does not distinguish at what stage of the policy making process stakeholders must be consulted. The 2019 Act also does not refer to stakeholder participation in the development of strategic documents, which is currently only voluntary (OECD, 2022[7]). Section 14 of the Act requires that, at a minimum, the following are disclosed to stakeholders (OECD, 2020[5]):
1. Current problems and the necessity of drafting the legislation, including the purpose and expected outcomes;
2. Explanations of the rationale or important issues of the draft legislation in simple language;
3. Persons who are or may be affected by the impacts or potential impacts of the law (including to livelihood, occupation, economic, social, environmental, or other impacts); and,
4. The necessity for the permit system, committee system, and criminal punishment, including the rules on the exercise of discretion by State officials.
The Act further establishes two requirements under Section 16 of the 2019 Act. First, the results of public consultation must be taken into account when preparing RIA reports and drafting legislation. Second, the state agency must summarise the results of public consultation, which must, at the minimum, include the topics upon which opinions were expressed and the summarized opinions of each stakeholder for each topic, and must also indicate whether there are amendments or no amendment regarding the key principles or issues of the legislation in accordance with the stakeholder’s opinions, as well as the underlying reasons for such decision (to amend or not to amend). The Secretariat to Cabinet or OCS can require the stakeholder engagement to be conducted again.
The OCS has also produced subordinate regulations to the 2019 Act set forth guidelines for conducting stakeholder consultation. It states the motivation of stakeholder engagement as allowing the “Government to correctly identify the issues and the needs of stakeholders, as well as to accurately gauge the potential impact of the draft legislation”. The subordinate regulation further highlights how effective consultation can promote mutual understanding between the parties involves and encourage wider participation. The subordinate regulation states the following (OECD, 2020[5]):
1. Clear, open, and direct communication between the Government and stakeholders.
2. Use accessible and easily comprehensible language to communicate with stakeholders.
3. Consultation exercises must provide equal opportunities for all stakeholders to voice their opinions irrespective of their stance on the issues. A wide variety of responses will yield a better-informed legislative process.
4. Allow sufficient time for each consultation exercise for the targeted stakeholders to participate. Consultation aided by information technology measures must last no less than 15 days. The government agency must provide a public justification if they are not able to meet the minimum duration for stakeholder consultation.
5. Consultation exercise via the Central System is the baseline practice for stakeholder consultation. However, agencies are encouraged to employ other methods of consultation alongside the publication on the Central System to ensure that all relevant parties are heard. This is to be done with careful consideration to the characteristics and size of each stakeholder group, the topic of discussion, and the burden of the consultation on the participants. Where appropriate, agencies may collaborate on consultation exercises for more efficient reach to stakeholder groups, e.g. jointly held interviews or meetings.
6. The result of public consultation should be taken into consideration without regard to the identity of the commenter or whether they specify their real name or not. It shall not matter who the commenter is; whether they specify his/her name; or whether they use their real identity or not.
Thailand has also made progress in using digital tools to enhance its stakeholder engagement process. As mentioned above, the Government of Thailand launched the public consultation portal law.go.th that serves as a centralised platform for all public consultations in Thailand. Online consultation is the only consultation channels mandated by the 2019 Act (ministries and regulatory agencies may opt to engage stakeholders with additional means on a voluntary basis). The Digital Government Development Agency is assigned responsibility for providing, maintaining, and developing this central system in accordance with Section 11 of the 2019 Act.
Burden reduction/ex post review
Thailand has continued to show commitment to all parts of the regulatory cycle, including ex post review. The importance of ex post review is part of the Thai National Strategy (2017-2036). The Strategy calls for laws and regulations to be reviewed and modified so that they are more explicit, fair, and up-to-date; supporting the public administration, national development, public services, business management, and international competitiveness. The Strategy also stipulates that any laws and regulations that no longer met those needs shall be abolished, and those related to international competition must comply with international obligations and agreements.
OECD (2020[5]) notes that The Cabinet Resolution enacted in April 2017 provided whole-of-government instructions on GRP implementation, complementing the so-called “Sunset Law” (the Royal Decree on Revision of Law, B.E. 2558) and the Licensing Facilitation Act, which were both enacted in 2015. The Sunset Law requires that the relevant authority conduct a review of the appropriateness of the law every five years since its implementation. The Licensing Facilitation Act requires each authority to review the laws concerning their respective licensing requirements and determines whether such licensing requirement should be repealed or replaced by another measure every five years since the licensing requirement has come into force.
The 2019 Act on Legislative Drafting and Evaluation of Law expands the scope of application of the evaluation requirements from primary legislation to also include secondary and implementing rules; it has also introduced the requirement to publish on the central system the list of laws and the State agencies that are responsible for the related reviews (OECD, 2020[5]). Since the entry into force of the 2019 Act and the related Guidelines in November 2019, the Sunset Law has been repealed. The 2019 Act adopts much of the same principles of the Sunset Law – prescribing a review every 5 years – however, it places ex post analysis within a framework of regulatory policy and management (OECD, 2020[5]).
OECD (2020[5]) also mentions that in terms of planning and execution of the reviews, the 2019 Act allocates general responsibilities to the agency enforcing the law. It further specifies that if the evaluation findings reveal the opportunity to repeal, reform, or amend the law, the decision to do so is to be taken by the responsible agency. According to the OCS, in addition to the law itself, the completed report after the ex post review will be published in the central system. The ex post guidelines stipulate that the responsible agency will also be obliged to share the results of the analysis with the Law Reform Commission.
Thailand adopts a regulation-by-regulation approach to evaluation at the moment- the responsible state agency must review every law and regulation that imposes burdens upon the people, following the five-year review clause (OECD, 2020[5]). While this approach guarantees that no piece of legislation is left behind over time, given the high number of legal acts in force it may take disproportionately long time to be completed and come to reviewing particularly burdensome or problematic provisions.
Thailand has made efforts to facilitate burden reduction in addition to strengthening requirements for ex post reviews. The Guillotine Project was launched in 2017 as a fast-track way of reviewing laws and regulations and removing unnecessary or unwanted laws and regulations, or revising them, according to a process (JFCCT, n.d.[8]). This reform is led by the Prime Minister’s Office and aims to change processes, legal acts and back office efficiency as needed. Users can submit proposals by email or by the Simple and Smart Licence site for change/removal of laws, regulations which are about licences or permits of any kind (JFCCT, n.d.[8]).
Thailand 4.0., which is Thailand’s national development plan, aims to use digital technology to enhance competitiveness of the local business environment and to increase transparency to provide its citizens with equitable access to public services and their data. The advancements made by Thailand in implementing its digital government policy have the objective of spearheading the digitalisation of the private sector and enhance the access of both citizens and businesses to public sector data to drive the country’s overall economic competitiveness (Bangkok Post, 2021[9]).
The Thai government’s digital government policy, reinforced by the Digitalisation of Public Administration and Services Delivery Act, B.E. 2562 (2019), has set four objectives with the aim of enhancing how the public sector works for the people, including social and economic equitability, the enhancement of economic competitiveness, ensuring government transparency and improving people participation (Bangkok Post, 2021[9]). The policy is comprised of four strategies: 1) delivering end-to-end digital services to citizens, 2) improving the ease of doing business via digital technology, 3) offering open data platforms and 4) promoting people participation in the policy-making process. The strategies included in the policy are in line with the ASEAN Digital Masterplan 2025 (OECD, 2022[7]).
Implementation of digital government policy has been entrusted by law to the Digital Government Development Agency (DGA), which has continued to spread digital government architecture among government agencies. Among the key measures are the acceleration of the Thailand Government Information Exchange, a central database of government agencies designed to reduce the documentation burden on the private sector, improve efficiency by eliminating redundancy, and promote the use of National Digital ID, including digital signatures among government agencies (Bangkok Post, 2021[9]). Another important initiative is the creation of a government data catalogue to enable the private sector to access the public sector’s data more efficiently (Bangkok Post, 2021[9]). The DGA is also accelerating development of the Government Data Exchange to create an integrated platform of government databases over the next two years by standardising data and information exchange guidelines among government agencies (Bangkok Post, 2021[9]; OECD, 2022[6]). Other policies that aim to use digital technologies to enhance the business and policy environment for Thailand include:
Bank of Thailand Notification No.4/B.E.2562 on the Determination of Rules, Procedures, and Conditions for Peer-to-Peer Lending Businesses and Platforms (2019)
Securities and Exchange Commission Notification No.21/B.E.2562 on the Offering of Securities for Sale through Crowdfunding Portals (2019)
Securities and Exchange Commission Rules on Digital Asset Exchange B.E.2562 (2019)
Thailand National Big Data Policy: The Steering Committee for Policy Implementation to utilise Big Data, Data Centers, and Cloud Computing (legislation, architecture and government information intergration system, human resource development)
As a result of implementation of policies to enhance digital government, Thailand’s ranking in the United Nations e-government development index has continually improved, rising from 77th in 2016 to 73rd in 2018, and to 57th in the most recent 2020 survey.
Examples of online platforms aimed at improving regulatory policy within Thailand also exist. The Law.go.th Central Hearing Portal allows civic engagement during regulatory, legal process to broaden the engagement with not just people with the country, but with stakeholders worldwide. Corporations without business presence in Thailand can use it to submit opinions and comments. Moreover, OCS Central Legal Database (for launch in Q1’22) aims to make the legal database easier for people to gain access to the legal system. Platforms aimed at facilitating communication between government and business also exist in Thailand. Two examples of such platforms include the Nationwide One-stop Service (OSS) Center and an OSMEP Grievance Management Center for entrepreneurs to report their complaints.
Advisory bodies related to regulatory oversight and ethical guidance also exist in Thailand. The National Ethics Committee on Science and Technology provides guidance, advice and support to stakeholders; gathers opinions from stakeholders on ethical principles, regulation improvements, etc.; provides expert ethical opinion; facilitates cross-government co-ordination in developing/adopting guidelines, regulations, etc.; sets and adopts international standards; and provides formal input to policymakers (OECD AI Policy Observatory, n.d.[10]). The National Ethics Committee on Science and Technology reports to the Head of national government and is composed of mostly government representatives. Reports are publicly available.
Thailand is also beginning to integrate artificial intelligence into its digital economy. The Digital Government Development Agency (DGA) established a government Artificial Intelligence (AI) Centre to boost government agencies' efficiency and services offered by focusing on three core functions: fostering networks and systems for AI adoption support; generating digital platforms in the cloud where state agencies can seek consultancy and AI solutions for their services; and upskilling government officials on AI and data analytics (Bloomberg, 2021[11]).
References
[2] ASEAN Single Window (2018), ASEAN Single Window Portal, https://asw.asean.org/.
[9] Bangkok Post (2021), Thailand’s Digital Transformation Boosts Data Industry, https://www.bangkokpost.com/business/2142475/thailands-digital-transformation-boosts-data-industry.
[11] Bloomberg (2021), The Next Digital Behemoth: Thailand’s 4.0 Revolution, https://www.bloomberg.com/press-releases/2021-07-30/the-next-digital-behemoth-thailand-s-4-0-revolution.
[8] JFCCT (n.d.), Guillotine Project, http://www.jfcct.org/major-business-issues/guillotine-project/.
[6] OECD (2022), Open and Connected Government Review of Thailand, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/e1593a0c-en.
[7] OECD (2022), Open and Connected Government Review of Thailand, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/e1593a0c-en.
[5] OECD (2020), Regulatory Management and Oversight Reforms in Thailand, OECD Publishing.
[10] OECD AI Policy Observatory (n.d.), , https://oecd.ai/en/dashboards/policy-initiatives/http:%2F%2Faipo.oecd.org%2F2021-data-policyInitiatives-26126.
[4] OSMEP (n.d.), 20-Year National Strategy (2017-2036), https://www.sme.go.th/en/page.php?modulekey=378#:~:text=The%20National%20Strategy%20(2017%2D2036,first%20national%20long%2Dterm%20strategy&text=achieves%20its%20vision%20of%20becoming,people's%20happiness%20and%20well%2Dbeing.
[1] Reuters (2021), Thailand plans to join talks on trans-Pacific trade pact membership, https://www.reuters.com/world/asia-pacific/thailand-plans-join-talks-trans-pacific-trade-pact-membership-2021-11-22/#:~:text=BANGKOK%2C%20Nov%2022%20(Reuters),harm%20farm%20and%20healthcare%20businesses.
[3] Thai Customs Department (2018), , https://www.unescap.org/sites/default/files/S7-8_NSW-ASW%20presentation%20%288%20Aug%202018%29.pdf.
Note
← 1. Atchayabat and Prathanabat refer to types of permits issued for prospecting and exploration related to mining and minerals.