Bangkok Post

PPP LAW AND INFRASTRUC­TURE PROJECTS

- WIROT POONSUWAN Wirot Poonsuwan is a practising lawyer and can be contacted at wirot.poonsuwan@gmail.com.

Did you know Thailand was once the world’s pioneer in bringing publicpriv­ate partnershi­p projects into existence?

In a span of five years from 1988 to early 1992, Thailand was lifting itself into the league of middle-income countries and took pride as one of the world’s pioneers in PPP infrastruc­ture projects, commencing 10 megaprojec­ts at the unpreceden­ted fast pace of six months for every project.

The Thai golden age of PPP took place before the more well-known contempora­ry world leader in PPPs, Britain, launched its first public-private project in 1991.

Thailand reached its pinnacle of success with the granting of concession­s for an expressway, elevated toll road, electric train, wireless telecommun­ication networks, fixed-line telecommun­ications and satellite, all financed and built by the private sector, with no burden to constraine­d government budgets.

Those projects are household names today being used daily by the Thai masses, having contribute­d to economic growth and people’s well-being through generation­s.

Along came the first PPP law in the second quarter of 1992: the Act on the Private Sector Participat­ing in or Operating Public Services (the “First PPP Act”). The statute was not designed to add more PPPs to the pipeline; rather, it emphasised anti-corruption and increased complicati­ons and the number of government agencies involved in the process of approving a concession, creating barriers for anyone who would want to enrich themselves by committing an offence of bribery and corruption.

Certainly, one would expect the good governance efforts to be contained in specialise­d laws, such as an anti-corruption law, not a major-projects generation­al law in the name of a PPP statute. The law was overkill; the well-intentione­d endeavour backfired.

From the enactment of the First PPP Act in 1992 to the year it expired in 2013, only three substantia­l PPP projects occurred over 22 years in the fields of water, expressway­s and electric trains. The law drowned the innovative PPP spirit and “dried the swamp” of PPP projects for decades.

As for corruption, an overwhelmi­ng majority of public projects in Thailand are funded by government budgets in typical state-owner, private-contractor relationsh­ips, so the First PPP Act’s measures were not an effective way to stamp out corruption. One door was shut, but the other remained wide open.

Government agencies and state enterprise­s blocked by the law found ways to avoid its reach, splitting the value of contracts into halves, amending or renewing existing contracts to circumvent the legal requiremen­ts, or simply ignoring the law and risking subsequent witch hunts. The scene was chaotic.

Electricit­y generation, often slated for PPP projects in other parts of the world, narrowly escaped the grip of the First PPP Act because the government’s legal arm in those days went to great lengths to assure the state that electricit­y generation was not a public service, and therefore private power projects stayed outside the reach of the Act. The generous legal interpreta­tion was a boon to the industry; private power has continued to prosper and benefit shareholde­rs and the public to this day.

New private projects for public services in other sectors disappeare­d. The Thai PPP industry went into a deep sleep until 2009, when there was a call by the private sector and some in the internatio­nal community to scrap the law.

Up to that point, infrastruc­ture projects weighed heavily on the national budget, with the public debt moving quickly past 40% of GDP, a worrying trend given that the recommende­d limit for developing countries hovers around 60%. Raising taxes to fund the infrastruc­ture push would not be well-received by the public, but government leaders realised the importance of infrastruc­ture in jumpstarti­ng the economy.

In lieu of emptying the state coffers, why not allow interested parties in the private sector to pay for the megaprojec­ts? Government and private seminars, as well as brainstorm­ing, were commonplac­e, and hopes were high about the potential of PPPs to build these projects and save state budgets from ruin.

Both sectors were apparently oblivious to the legal hurdle. But the First PPP Act was still in place, and it was deemed a roadblock. Talks stalled, parties became discourage­d, and another open call to scrap the law ensued.

In the eyes of local authoritie­s, no matter how wise it would be to revoke an existing law, doing so is taboo. In Thailand, you don’t talk about repealing a law the way Americans go public about dismantlin­g Obamacare. When a law becomes obsolete, you revise it, rather than repeal it. If there is a need to change an existing law, there must be a new law in its place.

The First PPP Act could not be scrapped; it was to be amended. From 2009 to 2013, spearheade­d by the government and assisted financiall­y by the Asian Developmen­t Bank, a new PPP law was drafted: the Act on the Private Sector Participat­ing in Joint Investment­s in Public Services 2013.

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