Thaksin's Original and Conventional Tricks Found by NCCC and Confirmed by Judge Prasert Nasakul 
( Last edit 2009-05-30 )
This is the third chapter of an adaptation from the original article in Thai by Plew See-Ngoen in Thai Post Newspaper on July 10, 2009 plus an excerpt from the individual verdict by Judge Prasert Nasakul who presided the hearing and judging the case of Thaksin's asset concealment in 2001 when Thaksin was just about to start his PM post.
(5) The regulations governing the functions of the NCCC which the defendant claims that the plaintiff did not follow, had been abolished since November 18, 1999 when the Counter Corruption Act 1999 in association with the Constitution was already enforced, according to the article 323 clause 2 of the Constitution. The article 130 of the Act in association with the Constitution stipulates that any regulations issued under the Constituion, will remain enforceable as long as they are not contradictory to the Act in association with the Constitution and until the regulations under the Act in association with the Constitution are enforceable. This does not apply to such regulations because the Constitution article 321 clause 2 has apparently stated a termination of the regulations.
(6) Why the plaintiff appointed the investigating subcommittee was in accordance with the article 19(12) of the Counter Corruption Act 1999 in association with the Constitution, in order to examine the assets and the liabilities according to section 3 (Examination of Assets and Liabilities) which was not the examination of corruptions and unusual wealth stated in section 4 (Investigation of Facts).
(7) Inspection of the plaintiff's meeting report on that day reveals that the committee approved the report of the meeting on December 26, 2000 on December 28, 2000 in accordance with the article 24 of the Counter Corruption Act 1999 in association with the Constitution. There was also a record of the discord of the minority's committee which was a request to amend the December 26, 2000's meeting report on page 23 line 17 as "...under questioning..." to "... together with the opinions and reasons which was submitted to the committee on that day. There was also tape recording and a taking notes of what was spoken in the meeting and the questions..." and the words "...join the meeting..." to "...join the meeting with..." and on page 26. There was no other request to amend anything else from page 27 to 43 whereby the minority NCCC did not otherwise oppose or reject the validity of the report of the meeting on December 26, 2000.
Thus, it must be considered that the minority NCCC also approved the report since in the following meeting on January 2001, there was no reconsideration of the December 26, 2000's meeting report which was amended on December 28, 2000. Therefore, the December 26, 2000's meeting report amended on December 28, 2000 is to be considered accurate and unconditionally approved by the assembly. Therefore, there is no need to transcribe the audio tape for re-examination.
(8) The plaintiff voted 8 to 1 to file the plaint, according to the article 295 of the Constitution and the article 24 of the Counter Corruption Act 1999 in association with the Constitution, for the Constitution Court to rule whether the defendant deliberately submitted falsified statements or concealed the information which was supposed to be declared.
As a result of all the reasons above, therefore, the Constitution Court has the authority to accept the plaint to judge. If the defendant sees that any of the NCCC act unconstitutionally or unduely, he shall proceed alternatively otherwise.
Whether or not, the defendant deliberately submitted falsified statements and addenda of assets and debts or concealed information which was supposed to be declared, as required by the Constitution article 295.
This issue has four considerations as follows.
First consideration: Did the defendant have the obligation to submit the statements?
Since the defendant held a political position, as a result, he had the obligation to submit the statements as stipulated by the Constitution. It turns out that:
1.1 The defendant opposed that he did not have an obligation to submit the statements as stipulated by the Constitution because
(1) He was a deputy Prime Minister during the previuos Constitution which did not stipulate the defendant to submit the statements.
(2) The Counter Corruption Act 1999 in association with the Constitution was promulgated on November 18, 1999 after the defendant had for a long time left the post.
(3) NCCC secretariat did not have the authority to specify the statement's format and he did not inform the cabinet.
(4) The submission of the statements of the defendant was voluntary, therefore, despite minor faults or defective, they were sincere mistakes. The defendant does not deserve a punishment.
1.2 The plaintiff explained that
(1) The defendant was a deputy Prime Minister according to the article 317 clause 1 of the Constitution. Therefore, he had all the obligations as stipulated by the Constitution which included the obligations to comply with section10 (Scrutiny of State Authority Usage). Additionally, the exceptions in the third and fourth clauses of article 317 do not apply.
(2) The Constitution Court had ruled before that the political office holders prior to this Constitution is promulgated and left the posts during this Constitution has already been promulgated, similar to the defendant, have the obligation to submit the statements.
(3) The defendant submitted the statements thrice within the time limits as stiputated by the Constitution which means that the defendant accepted his obligations to submit the statements according to the Constitution and other laws.
(4) The first clause of article 321 of the Constitution stipulates that the previously existed NCCC (Po Po Po) and its bureau, are to be transformed to NCCC and the Office of NCCC, until the time which the laws in association with the Constitution would be enacted which is limited within two years from the date of promulgation of the Constitution.
(5) The plaintiff has the authority according to the Constitution and the laws particularly the article 301 of the Constitution.
For this consideration, available facts are:
(1) Although the defendant was a Deputy Prime Minister according to the previous Constitution, the present Constitution which has been promulgated on October 11, 1997, stipulates that the defendant who was a Deputy Prime Minister according to the previous Constitution also considered as a Deputy Prime Minister according to the present Constitution. Therefore the defendant, without any exemption clause, is under all provisions of the present Constitution, i.e. the obligations under section 10 (Scrutiny of State Authority Usage) part 1 the submission of the statements of assets and liabilities, in particular, those of the defendant, his spouse and the children who have not become sui juris, any time whenever taking the post or leaving the post and at one year after leaving the post as stipulated by article 291 and 292 of the Constitution.
(2) The Constitution Court has the authority to rule the plaint which the plaintiff accuses any political post holders who deliberately submit falsified statements or conceal facts which are supposed to be declared, either while in the posts or after leaving the posts, under article 295 of the Constitution, as appeared in: the verdict number 10/2000 for the case of Mr.Anant Sawastanon, an officer in the secretariat office of the Prime Minister (deliberately refused to submit statements); the verdict number 11/2000 for the case of Mr.Chatchai Sumetchotimetha, a consultant to the Minister of the PM Office (deliberately refused to submit statements); the verdict number 12/2000 for the case of Mr.Sukum Cherdchuen, a senator (deliberately refused to submit statements' addendum); the verdict number 23/2000 for the case of Mr.Jirayu Jarasathien, a consultant to the Minister of Public Health (deliberately submitted falsifed statements); the verdict number 27/2000 for the case of Mr.Kosol Srisang, a consultant to the Minister of Education (deliberately refused to submit statements); the verdict number 28/2000 for the case of Mr.Mahusen Masuyee, an officer in the secretariat office of the Prime Minister (deliberately refused to submit statements); the verdict number 31/2000 for the case of Major General Sanan Kajornprasat, a Pijit MP, a deputy Prime Minister and an Interior Minister (deliberately submitted falsifed statements); the verdict number 5/2001 for the case of Mr.Sumet Upolthien, a municipal council member (deliberately refused to submit statements); and the verdict number 19/2001 for the case of Mr.Prayoot Mahakitsiri, a senator (deliberately refused to submit statements)., who were all used to hold political posts and left those posts.
(3) Although the article 321 of the Constitution stipulates that the previously existed NCCC (Po Po Po) and its bureau, are to be transformed to NCCC and the Office of NCCC, until the time which the laws in association with the Constitution would be enacted which is limited within two years from the date of promulgation of the Constitution, and in fact: the Counter Corruption Act 1999 in association with the Constitution was promulgated on November 18, 1999; and the previously existed NCCC (Po Po Po) was transformed to NCCC, had enacted the regulations as necessary for the functions of the NCCC as stipulated by the Constitution, which the Constitution Court scrutinized the validity in accordance with the Constitution prior to the pronouncement in the government gazette; and which to be enforced until the Counter Corruption Act in association with the Constitution would be promulgated as the Counter Corruption Act 1999 in association with the Constitution was promulgated on November 18, 1999; it does not mean that the defendant does not have an obligation to submit the statements as required by this Constitution until after the enactment of the Act in association with the Constitution and the statement's format is to be specified.
(4) The previously existed NCCC (Po Po Po) 's secretariat issued letters to the secretariat of the House of Parliament, the secretariat of the House of Senators, and provincial governors including the governor of Bangkok on October 15, 1997, informing that article 291 of the Constitution stipulates that political post holders have obligations to submit statements and article 321 stipulates that the previously existed NCCC (Po Po Po) and its bureau, are to be transformed to NCCC and the Office of NCCC, who is to specify the format of the statements and collect them. The submitter has to seal and sign the statements and the envelopes which are to be sent in person or by self-replied registered mail. NCCC, however, has no obligation to inform the cabinet.
(5) It turned out that the defendant submitted the first statement on the same day as the present Constitution was promulgated on October 11, 1997. The defendant submitted the second statement on December 4, 1997 as he left the post on November 7, 1997 and submitted the third statement on December 4, 1998 as he left the post for one year. All of the three submissions were in time which means that the defendant accepted that he had the obligation to submit the statements as stipulated by article 291 of the Constitution and within the time limits as stipulated by article 292 the Constitution.
(6) The plaintiff has the authorities and duties as specified by the Consitution, particularly article 301(4) to scrutinize the submitted statements and addenda for the actual presence and changes of the assets and liablities of any post holders as specified by article 291, articles relevant to article 321 temporary section, and other laws.
According to reasons above, therefore, the defendant has the obligations to submit the statements as required by article 291, 292 and 317 first clause of the Constitution.
Second Consideration: Does article 295 of the Constitution apply to the defendant?
General considerations: If any political post holders do not comply with article 291, 292 and 295 by deliberatly refuse to submit statements or deliberately submit falsified statements or conceal the information which is supposed to be declared, and if such persons are still in the political posts, they are to be dismissed from the posts from the days they are supposed to submit as specified by article 292, or otherwise, from the days they are found to have committed such acts. If they have left the posts e.g. by resignation, or along with the parliament's or senator's terms, by finishing their terms, or article 215(1), there is no need to order another dismissal. Moreover, such persons are prohibited from holding any political posts for five years from the day of leaving the posts either by terms or by order to dismiss.
It turns out that
2.1 The defendant opposes that: (1) The plaintiff approved the first and second statements and was going to review the third statement. Such acts do not comply with the second clause of article 293 of the Constitution; (2) The defendant's case falls into the enforcement of article 294 of the Constitution; (3) The defendant had left the political post for a long time. Therefore, article 295 of the Constitution does not apply to the defendant.
2.2 The plaintiff explains that: (1) The plaintiff did not approve the first and second statements but stated that the defendant had the assets and the liabilities which matched the submitted statements. Moreover, the Constitution does not prohibit the plaintiff to re-examine the statements if someone complains that the defendant had submitted falsified statements or conceal the information which was supposed to be declared; (2) In this case, the plaintiff was to follow article 295 of the Constitution first. Then after the plaintiff found that anyone has unusually increased assets, article 294 would be the following step; and (3) If the statements fit the description as in article 295 and the submitter is in the political post, such person is to be dismissed and prohibited from any political posts for five years from the day of dismissal. If the submitter has left the political post, such person is only prohibited from any political posts for five years from the day of leaving the post.
For this consideration, available facts are:
(1) During the verification of the draft of this Constitution, it appeared that Gen.Chawalit Yongjaiyud, the PM asked Mr.Anand Panyarachun, the president of the comittee, through Mr.Wan Mahamed Nor Matha, the House Speaker, that there were several matters in several articles, several sections and several paragraphs which were deviated from the philosophy and ideologies of democracy ... Such important matters which need amendments should be amended. The debate in this parliament would finalize the amendments of the draft Constitution for the benefit of the public in the future.
The president of the comittee replied that there may be some defects which do not originate from maleficent wishes but may cause a little problem for interpretation. Acceptance of the draft Constitution would not lead to any difficulties and problems which a lot of people are afraid of.
Moreover, in interpreting the laws, apart from various principles, every case also needs people's morality because problems in politics, economics, and Thai society now originate from Thais head toward materialistic progresses but away from morality. The more progress in materialism, the less peace of mind because of more selfishness. Selfishness is the cause of all problems of human.
(2) Check and balance of the state authority consist of the stipulations that: (1) political post holders are to submit statements of theirs, of the spouses' and the children's which have not become sui juris; (2) If any political post holders deliberately refuse to submit statements, or submit falsified statements, or conceal information which is supposed to be declared, such people are to be dismissed from the political posts and prohibited from any political posts for five years, through the plaintiff's filing to the Constitution Court to rule. (3) If it is found that the defendant has unusually increased assets, the plaintiff would let the defendant explain first. If the reasons of the defendant are justifiable, the plaintiff would terminate the examination. If the plaintiff sees that the defendant's reasons are not justifiable, the plaintiff will have to proceed according to the second clause of article 294 of the Constitution, i.e. filing all the documents and the examination reports to the Supreme Court, criminal section for political post holders to rule and confiscate the unusual increased assets to the country.
(3) Publicizing of the statements of the Prime Minister and Ministers to the public within 30 days, is according to the second clause of article 293 of the Constitution. For the case of the defendant, there is an announcement of the plaintiff about the result of the investigation for the alteration of the assets and liabilities of political post holders dated July 6, 1999 which stated only, "The results of the examination did not reveal unusually increase of the assets.." which is not an official approval that the persons in the announcement had rightly acquired assets. The obligation for the plaintiff to assemble to rapidly examine the correctness and the actual presence of such assets and liabilities as stipulated by the third clause of article 293, is only a pressing forward for the plaintiff's progress. As long as any assets or liabilities are actually and completely existing through rightly acquisition, such assets or liabilities will remain actually and completely existing by rights for certain because the owner will be able to prove them.
(4) The case of the defendant is just submission of statements which is the first stage of check and balance of state authority. When the plaintiff has examined and found that the defendant had deliberately submitted falsified statements or concealed the information which was supposed to be declared, particularly, when the defendant claimed that he had signed blank share transfer forms for his spouse which his spouse, whether or not, would later use proxy shareholders, the defendant was not aware. For filling the statements, the defendant claims the misunderstanding of the private secretary despite the defendant's spouse testified to the Court that it was the spouse who ordered not to fill such information in the statement (refer to the facts in (2) of the third issue). Moreover, the defendant claims public relation news of 31/2001 on May 24, 2001, that Miss Boonchu, Mr.Chairat, Mr.Manas, Miss Duangta, and Mr.Wichai had, in fact, held shares as proxies of the defendant's spouse. For the trading of shares in the Stock Exchange of Thailand, tax was legally exempted.
However, the defendant's spouse ordered Miss Duangta on November 7, 1997 to sell Shin Corp.'s 4.5 million shares at 164 baht per share, amounting 738 million bahts to Mr.Banapot who admitted that he did not buy the shares but the defendant's spouse gave a portion of shares to him (the testimony to the examination subcommittee on December 15, 2000 page 5 or 7387). Such act may be a concealed juristic act because Mr.Banapot has to pay tax. If Mr.Banapot has not paid tax, the defendant's spouse has to.
The NCCC secretariat sent a letter NC 0006/85 dated February 20, 2001 together with the testimony of Mr.Banapot as requested by the director general of the revenue department. However, the answer from the revenue department about the tax payment is not available at present.
(5) The business practices in which the defendant and his spouse do not wish to reveal the shares being held by others, are nontransparent practices. If the secrets, such as who actually were Miss Duangta and Miss Boonchu, and how many did they actually hold the shares, and what were the actual relationship with Shinawatra family, were revealed that they were long-time close confidants, the defendant and related people may be scrutinzed by the committee governing the stock exchange of Thailand, for any acquisition or selling of the shares more than five per cent of the shares in possession. Particularly, on November 6 and 7, 1997 which were the days Miss Duangta sold Shin Corp's shares 0.5 million shares to Miss Boonchu and 4.5 million shares to Banapot were the same days which the defendant had to submit the first statement to the plaintiff. If this secret had been revealed, apart from the close confidants who were proxy shareholders and sellers must have reported to the SET Committee, the detail declared in the first statement would have been affected too. (the report of the examination subcommittee page 62-63)
(6) The intention of the Constitution for political reform would fail if the business people who volunteer to work in politics can claim legitimacy in their business practices in which: seven close confidants were used to register a new company for business reasons of speed and unaffordability to wait; or using close confidants as proxy shareholders who would sign on blank forms for undetermined future transfer since such signing on blank transfer forms are usual practices in Japan, China and Thailand which have no laws against and not against ethics; no medium or large business people would never carry out such acts which the defendant claims, "All others do the same."
The heart of politics is unselfishness. If being selfish and clanish, how would one be caring for the mass. Therefore, politicians should have morality, be ethical and respect virtuousness more than lay people. (Buddhadhaslikit 3 page 95) It is well aware that politics, economics and the social problems require corrections. If one who volunteers to solve the problems still uses same old measures, one will fail because the present is the result of the past and the present will be the cause of the future. One must think well, speak well and do well, to raise the future hope, otherwise, the supporters of the defendant will eventually be disappointed.
From the reasons above, therefore, article 295 of the Constitution is applied to the defendant who had left the political post. In fact, the Constitution Court had applied this article to all persons whom the plaintiff had filed for the Constitution Court ruling. (according to the facts in (2) of the first consideration )
FOURTH PART CLICK HERE