Ruling of the Supreme Court’s Criminal Division: Thaksin's Assets
( Last edit 2010-04-10 )
Gist of the Ruling of the Supreme Court’s Criminal Division for Persons Holding Political Offices on the Assets Seizure Case against Former Prime Minister Thaksin Shinawatra
On 26 February 2010, from 13.00-21.00 hrs., the panel of nine judges of the Supreme Court’s Criminal Division for Persons Holding Political Offices sat on the bench and read the ruling on the case filed by the Office of Attorney-General against Pol.Lt.Col.Thaksin Shinawatra requesting that assets worth 76,621,603,061.05 baht, together with the interests accrued therefrom, become property of the state, on the grounds that these assets were acquired inappropriately through acts constituting a conflict between personal and public interests, thereby constituting unusual wealth. Gist is as follows:
Having reviewed all testimonies and evidence from both the plaintiff and the defendant, the Court ruled that Pol.Lt.Col.Thaksin, while being Prime Minister for two terms, had committed acts that inappropriately benefited Shin Corporation Public Co., Ltd.(Shin Corp), the company which he actually owned the majority of shares. However, the Court felt that to confiscate all the assets related to the sale of Shin Corp shares would be unfair, as part of the assets were acquired by Pol.Lt.Col.Thaksin prior to becoming Prime Minister in February 2001, amounting to 30,247,915,606.35 baht. The Court therefore decided by majority vote that 46,373,687,454.70 baht, comprising money from the sale of Shin Corp shares and the dividends from the shares, together with the interests accrued from the said amount since the assets were frozen, would become property of the state.
In coming to its decision, the Court deliberated and ruled on the following:
1. Whether Pol.Lt.Col.Thaksin, while being Prime Minister from February 2001 till March 2005, was the actual owner of 1,419,490,150 shares in Shin Corp but sought to conceal the holding of such shares under the names of Mr.Panthongtae Shinawatra, Miss Pinthongta Shinawatra, Miss Yingrak Shinawatra and Mr.Banapot Damapong as their nominees.
The Court, considering the behaviours and actions of the defendant and other persons concerned, found that there existed irregularities and concealment of shares and that Pol.Lt.Col.Thaksin was the actual owner of 1,419,490,150 shares in Shin Corp, or some 48% of Shin Corp shares, which he sold to the Temasek Group of Singapore on 23 January 2006 for a total of 76,621,603,061.05 baht.
2. Whether Pol.Lt.Col.Thaksin, while being Prime Minister, undertook action that benefited Shin Corp and its affiliated companies. Of the five issues raised by the public prosecutor concerning Pol.Lt.Col.Thaksin’s abuse of power, the Court found that these amounted to extending benefits to Shin Corp and its affiliated companies, which in turn benefited Pol.Lt.Col.Thaksin, with the exception of the amendment of the contract regarding roaming services, of which the beneficiary was the Temasek Group.
2.1 On the conversion of concession fee for mobile phone operators into excise tax, the Court found by majority vote that the issuance of the Emergency Decree amending the Excise Tax Act of 1984, effective in 2003, which allowed telecommunications companies to deduct the concession fee from the excise tax paid, and raising the excise tax rate to 20-50%, benefited Advanced Info Service Co., Ltd. (AIS), of which Shin Corp was a major shareholder. The said Emergency Decree gave AIS a tax leverage over new companies thereby preventing fair competition in the telecommunications sector. Such act caused damage to the state of over 60 billion baht.
2.2 On the amendment of the mobile phone concession contract between the Telephone Organization of Thailand (TOT) and AIS on 15 May 2001 to reduce the proportion of revenue for the pre-paid mobile service which AIS had to pay to TOT, the Court found by majority vote that such act benefited AIS. The said amendment reduced the revenue on a pro rata basis to 20%, instead of the previous progressive rates of 25-30%, from 1 June 2001 until the expiration date of the contract.
2.3 On the amendment of the mobile phone concession contract on 20 September 2002 regarding roaming services, the Court found by majority vote that Pol.Lt.Col.Thaksin was not related to such act as the beneficiary of such act was the Temasek Group, which had acquired Shin Corp shares on 23 January 2006. The said amendment allowed AIS to use roaming services with other mobile operators and deduct relevant expenses from the revenue base used for calculating the fees it had to pay to TOT and the Communication Authority of Thailand (CAT).
2.4 On actions which promoted and supported the satellite business, such as those with regard to approval of the IP Star satellite project, amendment of the concession contract with regard to Thai Com satellites, and approval of the use of compensation payment for the Thai Com III satellite to rent international satellite channels, the Court found by majority votes that such actions benefited Shin Satellite Public Co., Ltd., and Shin Corp.
2.5 On the approval of the loan worth four billion baht from the Export-Import Bank of Thailand (EXIM Bank) to the Government of Myanmar with a below-cost interest rate to purchase goods and services from Shin Satellite Public Co., Ltd., and the extension of the debt moratorium period from 2 to 5 years, the Court found that this benefited Shin Satellite, which was contracted by the Government Myanmar to develop its telecommunications system.
Before rendering its ruling on the merits of the case, the Court had also ruled by unanimous decision that it had the jurisdiction in accordance with the Organic Law on the Criminal Procedures for Political Office Holders and the Court’s regulations to consider and rule on the case. Further, it found that the Assets Examination Committee (AEC) had the authority under the Notification of the Council for Democratic Reform under the Constitutional Monarchy No. 30, RE: Inspection of Acts being Detrimental to the State dated 30 September B.E. 2549 (2006) to inquire and gather evidence in the case before forwarding its findings to the Office of the Attorney-General. As for the indictment submitted by the Attorney-General, the Court ruled that it was clear and unambiguous.
Personal Reflections On The Assets Seizure Case by Korn Jatikawanich MP, Financial Minister in Abhisit's Cabinet
Financial karma for Thailand's Thaksin
By Shawn W Crispin, Asia Times Online's Southeast Asia Editor
What one hand of the Thai state gave in privileged telecommunications concessions, the other has taken away on charges of policy corruption and the accumulation of unusual wealth. In a highly anticipated Supreme Court verdict on Friday, a nine-judge panel ruled to seize US$1.4 billion (46.4 billion baht) worth of former prime minister and telecom concessionaire Thaksin Shinawatra's and his family's assets.
The court found that Thaksin and his ex-wife Pojaman na Pombejra concealed their assets in violation of laws that bar politicians and their spouses from owning shares in private companies while in office. Judges also ruled that Thaksin abused his power as premier by implementing policies that directly benefited his private companies, including the now Singapore-owned Shin Corp, Advanced Info Services and Thaicom, then known as Shin Satellite.
Thaksin's defense had maintained that the charges were politicized, coming in the aftermath of the 2006 military coup that toppled his government, and he challenged the legitimacy of the military-appointed Asset Examination Committee that originally built the case against him. His lawyers also argued that there were no legal grounds to seize all of Thaksin's and his family's assets because much of the funds were earned before he took public office in February 2001.
A potential $2.3 billion (76.6 billion baht) worth of frozen assets were in question in the trial. It was not immediately clear from the decision if the Finance Ministry's revenue department would be empowered by the verdict to seize another 36 billion baht it has ordered frozen from Thaksin's two children, Panthongtae and Pinthongta. The ministry has claimed the two owe at least 12 billion baht in back taxes from the 2006 sale of Shin Corp to Singapore's Temasek.
The landmark ruling represents the biggest state seizure of a deposed Asian leader's assets since the 1986 fall of the notoriously corrupt dictator Ferdinand Marcos in the Philippines. The more complicated case against Thaksin represents the second corruption conviction against him since his government was toppled in 2006. He fled into exile in August 2008 just days before being sentenced to two years in prison for his role in an irregular Bangkok land deal involving his government and ex-wife.
The court-ordered seizure of Thaksin's assets is in line with the gathering trend towards the "judicialization" of Thai politics, an apparently royally endorsed concept where high courts and judges assume the role the monarchy has traditionally played in mediating the country's complex and often heated political disputes. Observers noted that King Bhumibol Adulyadej symbolically addressed groups of judges on two occasions in recent weeks, urging them to adjudicate with "righteousness" the cases they handle. By Thai law, the monarchy is above politics.
The widely revered monarch made a similar address in the lead-up to a Constitutional Tribune decision in May 2007 that resulted in the legal dissolution of Thaksin's former ruling Thai Rak Thai party and banned 111 of the its top executives - including Thaksin - from politics for five years. After a period of ill-health that has confined Bhumibol to hospital since last September 19, the 82-year-old monarch has resumed certain ceremonial roles in the weeks leading up to Friday's decision.
While conservative interests have looked towards the courts to play a larger role in checking and balancing politicians and officials ahead of the eventual royal succession, Thaksin's red shirt-wearing United Front for Democracy Against Dictatorship (UDD) protest group supporters have challenged the impartiality of recent verdicts that they perceive have disproportionately gone against them, including the court-ordered dissolution of two Thaksin-aligned, democratically elected political parties since 2007.
It is not immediately clear whether the landmark verdict will lead to more or less political instability. Acting government spokesman Panitan Watanayagorn predicted in an interview before the verdict that the country's political situation would improve after the ruling. He noted that Prime Minister Abhisit Vejjajiva planned to focus less on domestic politics and more on neglected foreign policy, including planned trips to Australia, India and Russia, after the verdict.
On the other side of the political divide, the ruling will likely fuel the Thaksin-aligned UDD's rally call against what it has claimed are double standards in Thai society. UDD protest leaders retreated from earlier plans to stage mass rallies meant to pressure the government ahead of the ruling, but have now vowed to bring one million Thaksin supporters from the provinces to Bangkok in mid-March to topple Abhisit's government and force new elections.
Some analysts wonder whether the seizure of Thaksin's substantial assets will impact on the UDD's future ability to orchestrate and finance future large scale protests. Thaksin has consistently denied that he bankrolls the UDD, but the group's leaders and supporters clearly march to his orders, including his call from exile last April for his supporters to rise up in a “revolution” and overthrow Abhisit's government.
Because many here believe that future stability is dependent on Thaksin's access to funds, the level of his off-shore holdings is a matter of wild speculation in the local media. Thaksin said in a recent interview with the Times of London that he still has between $100-$200 million in assets off-shore. Diplomats tracking the situation note that he clearly has enough funds to make recent investments in lotteries in Fiji and Uganda and gold mines in Swaziland and Papua New Guinea, among other high risk ventures.
Other political analysts wonder whether the seizure of his billions and intensified efforts to extradite him from the United Arab Emirates will push the exiled former premier towards brinksmanship, including a possible expansion of the conflict from Bangkok into the northeastern rural provinces where his support is known to run strongest. They point to recent threats made by rogue retired and current military elements in Thaksin's camp who have called for the creation of a "people's army" and veiled threats to assassinate judges and officials involved in the handling of his assets case.
Underlining the emerging fragmentation of Thaksin's camp, the UDD issued a statement refuting those claims, saying it has "renounced our previous call to arms" and "categorically denies any involvement" in a recent grenade attack on army headquarters and a C-4-laden explosive found in front of the Supreme Court weeks before Friday's verdict. It's unclear which group now has the former premier's ear, but historically Thaksin has played political factions in his camp off one another in divide and rule fashion.
The government has pre-emptively responded to the threats by mobilizing joint civilian and security force teams across 38 provinces, including in Bangkok, and the erecting of new security cameras in areas of the national capital, including this week in front of the Supreme Court. To guard against a chaotic repeat of last April's breakdown in law and order, government spokesman Panitan said that security forces are prepared to deploy new "layering" techniques to prevent peaceful protests from spiraling into violent riots.
The seizure of $ 1.4 billion Thaksin's Thailand-based assets will spur new guessing games about exactly how much he may have socked away off-shore and his future willingness to funnel those funds into new bouts of instability. One government insider speculated that Thaksin's declining fortunes were already evident before Friday's verdict, witnessed in what he viewed as his "third class" private jet, decidedly "middle class" dwellings in Dubai and wardrobe shift from Armani to less refined business suits.
Others believe the image-conscious Thaksin has purposefully downgraded his on-camera presentation to evoke sympathy among his rural supporters and that he is keeping his financial powder dry to press his case for a royal pardon after the eventual succession from Bhumibol to his heir apparent son, Crown Prince Vajiralongkorn. While Thaksin is no doubt financially down with the seizure, it's not clear yet that he's politically out.