Bread. January 2007
Temasek Holdings stews in familiar juice
I made a prediction for Today newspaper in the last week of
December. It is a sign of how incredibly messy Thailand has become that I
don't even know whether I'm right or wrong.
In the last week of 2006, the newspaper contacted me asking what I thought would be the top 7 issues or outcomes that people should expect to witness in 2007, as well as 7 under-the-radar matters that could crop up.
"What do you mean by 'under-the-radar'? I asked.
"Things that people aren't really expecting, that might not even come to pass... kind of like dark-horse possibilities," the reporter explained.
They were canvassing thoughts from a broad selection of people, so I wasn't expected to name all 14.
I gave them my thoughts, as, I'm sure, did others; they were all consolidated into a feature article that appeared in Today's first edition for the year, on 3 January 2007. Among the top 7 things to look out for were said to be the increase in the Goods and Services Tax and likely changes in the healthcare system.
I can't recall what the newspaper listed as the top 7 'under-the-radar' events to watch out for were, but my one nomination was not included in the published list. In my email to Today dated 28 December, I had said,
On 9 January 2007, the Thai
newspaper, The Nation, reported that the Commerce Ministry was
submitting for cabinet approval, a major change to the Foreign Business
Act. The proposed amendment would treat any company in which foreign
shareholders had 50 percent or more of voting rights as a nominee
Currently, many foreign companies control Thai companies by using various joint venture holding companies as shareholders. Typically, on paper, the Thai partners have more than 50% of the holding company, but voting rights are distributed in a different way, favouring the foreign company. Thus, the foreign company has effective control of the holding company and consequently the Thai operating company, even though on paper, going by the ratio of shareholdings, the holding and operating companies are still majority-Thai.
Thai law may have been unclear about how to treat such shareholder agreements, but in practice, successive Thai government have refrained from looking too closely at these cosy arrangements.
Strictly speaking, foreign companies are barred from a broad range of commercial activities, and that is why many investors have resorted to such obfuscating set-ups in the past.
While the details of the proposed amendment have not been revealed -- corporate lawyers and foreign investors complained about the total lack of consultation and transparency -- it is believed that companies that currently run foul of the new rule will be given just 2 years to restructure themselves to make them really majority-Thai. All these companies will be scrambling to find genuine joint venture partners who can buy out their excess stake at fair value, but in such a scenario, it will most definitely be a buyer's market.
When the news of the proposed amendment to the law was first announced, almost everyone believed that reversing Temasek Holdings' takeover of Shin Corp was the main motive behind this move. In fact, the Sydney Morning Herald reported that Commerce Minister Krirkkrai Jirapaet singled out Shin Corp as a party that needed to restructure.
So things were unfolding in a way which I thought I had foreseen: as the military government loses the public's confidence, they resurrect nationalistic issues to stem their slide in public opinion.
They had already tarnished their own economic management credentials earlier in December by trying to impose currency controls in a sledgehammer fashion, only to retreat a day later when the stock exchange melted.
Then, just 3 days after I sent my email off to Today newspaper, 8 bombs exploded on New Year's eve in Bangkok. Till now, no one has claimed responsibility for them, and it is unlikely, given the poor forensic skills of the Thai police and their completely mindless investigative habits, that they will ever be able to pinpoint the perpetrators. This can only mean that the people who set off those bombs are free to set off others in the not too distant future.
As you can imagine, the Surayud Chulanont government clearly needs to demonstrate that it is in charge. What better way than to go after Thaksin again -- for example, his own and his family's diplomatic passports have just been cancelled -- and beat the nationalistic drum.
Yet the government has to be careful that their measures do not appear extra-legal and arbitrary -- faults commonly associated with military governments -- so while aiming to reverse the takeover of Shin Corp, they would want to do it in an across-the-board legal way. Hence the current proposal to amend the law, affecting all companies that have used nominee shareholders in the past.
But doing so, in such a broad manner, risked widespread alarm among foreign investors; as the Nation reported, all 28 foreign chambers of commerce protested loudly when news of the proposed amendment came out. The Thai stock market plunged again.
In a remarkable volte-face, reminiscent of what happened after the chaotic attempt to impose currency controls, a day after announcing the (still unpublished) amendments to the Foreign Business Act, the government began to backtrack, saying that foreign-invested companies are grouped into three classifications (Annexes 1 to 3 of the Law) and that the changes would only affect those in the first two lists. Most foreign-invested companies would not be affected by the new requirements, they said.
But what was most intriguing was an announcement that telecom companies would be exempted.
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Yet the government seems to feel that it must bend to populist nationalism, even as it tries to reassure foreign investors that, once again, the law will not be enforced if your trade is in Annex 3 (whatever that is), or if it is a telecom company (however that is defined). How is that different from the past when the law said these various companies must be majority-Thai, yet the government looked the other way when people found creative ways around the rules?
The root of the problem lies in the unresolved conflict between pandering to economic protectionism and wanting the benefits of foreign money. For a long while, people thought the legal fudging was harmless.
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Being very familiar with how the Singapore government behaves towards the gay community, I can immediately name you three examples, although I am sure other examples can be found relating to other areas too. Political observers have noted how our government likes to have in hand vast powers through "driftnet laws" that aren't normally used, but that can catch you on anything when they suddenly feel an urge to.
My first example is the case of the Nation and Snowball parties. They were licensed and held without any unusual hindrance from 2001 to 2004, in fact with increasing support from the Singapore Tourism Board. Then when complaints came up, believed to have come from the Christian rightwing, whom the government needed to appease over the casino issue, the government turned around and banned them. We hadn't known they were gay parties, the police quite disingenuously said.
Secondly, take our Internet Code of Practice . It is forbidden to "advocate" homosexuality or lesbianism, on pain of penalties. What does "advocate" mean? Oh don't worry, says the government. We will apply the Internet regulations with a light touch; while we have all these sweeping laws, you can trust us to apply them sparingly.
How is this different from the Thai government's previous "light touch" when it came to nominee shareholders fronting for foreign investors?
More recently, we were told that, in order to reflect the so-called conservative majority in Singapore, the Penal Code would continue to criminalise homosexual sex, but don't worry, the government said, we won't enforce that particular law. Are gays and lesbians supposed to be happy with that state of affairs?
Isn't this exactly the same as what the Thais have been doing: pandering to an antediluvian segment of the population, while wanting to enjoy the benefits of openness and modernity? I can't see any moral difference between what has happened in Thailand and what the Singapore government continues to do here.
© Yawning Bread