Debacle At Foreign Correspondents Club

[sabaijai]

from Dr Jeffrey Race:

[Published in Bangkok Post "Postbag" 26 June 2004, available online

(free registration required) at

<http://www.bangkokpost.com/260604_News/26Jun2004_news31.php>]

Please pass on to anyone who might enjoy a good chuckle.

==============Not allowed to present the facts=================

[O]n June 19 [it] was announced that a panel discussion on the Thai-US FTA negotiations would take place at 8pm on June 23 at the Foreign Correspondents Club of Thailand.

I was scheduled to speak on "The rule of law in Thailand and the FTA negotiations" and present excerpts from the documents I tabled at the FTA public hearings in March in Washington DC.

Whatever substantive provisions are finally negotiated, enforcement is key to the FTA's success or failure, a point stressed by several of my fellow witnesses in Washington. (I was the only witness from Thailand.)

Four hours before our panel's scheduled appearance, our convenor phoned to tell me apologetically that the FCCT had received phone calls from two official agencies, details of which he could not reveal. Their import was that I must not be permitted to present the materials tabled at the Washington public hearings.

When our panel went on stage without my advertised presence, the FCCT president kindly helped to clarify an awkward situation by confirming receipt of the phone calls, denying any official censorship, and explaining that the FCCT had made an independent decision (which coincided with the official "requests").

His delicate choice of words ("I have received legal advice") signalled to us that the FCCT was under threat of litigation if it facilitated documentation of the condition of the rule of law in Thailand.

Many attended our panel expecting the vigorous discussion promised on this page on June 19. I beg to apologise to them for my absence and to the FCCT and the panel convenor for any inconvenience caused. Those interested in my speaking notes may contact me at <[email protected]>.

Old-timers will recall we went through a similar period after the 1976 coup d'etat here. The wonderful people of Thailand recovered from that dark age and I remain hopeful they will eventually recover from this one as well.

--Jeffrey Race

[GuestHouse]

I've kept a copy of this for when it gets removed from Thaivisa

[george]

Loved to read this, I wouldn't be removing it.

[Axel]

Loved to read this, I wouldn't be removed.

Thanks George

This is Thai Visa, not some Mickey Mouse company.

[stumonster]

[Extract: Verbatim oral testimony of Jeffrey Race]

http://www.camblab.com/nugget/verb_01.htm

[dr_Pat_Pong]

This does not look good for any positive outcome in the FTA agreement negotiations between the USA and Thailand.

[OldAsiaHand]

It doesn't look very good for the FCCT either, does it?

[Dutchy2]

This does not look good for any positive outcome in the FTA agreement negotiations between the USA and Thailand.

This will probably not effect the endresult of the negotiations as the stakes on both sides are high. Jeffrey Race refers to old cases, the Thai government used to block his websites and they're freely accessible now. A sign that the Thai governmnet is more open, people have complained about this issue previously and it has also been reported by the Bangkok Post. I do however fully agree with Jeffrey, the Thais will indeed sign anything and then act in the "Thai way"..

The pdf files are a must for those wanting to engage in business in Thailand

Cheers

Dutchy

[fatter than harry]

The pdf files are a must for those wanting to engage in business in Thailand

Am I blind? I can't see the PDF's, where are they? this is priceless!

Many thanks

[Dutchy2]

The pdf files are a must for those wanting to engage in business in Thailand

Am I blind? I can't see the PDF's, where are they? this is priceless!

Many thanks

I'm sorry, it wasn't in the information here provided. Go to: http://www.camblab.com/thai_02.htm>.]

The complete text of the speaking notes by the way:

[sPEAKING NOTES FOR ABORTED TALK AT FOREIGN CORRESPONDENTS CLUB OF

THAILAND ON THAI-U.S. FREE TRADE AGREEMENT NEGOTIATIONS]

JR'S TALK - 10 MINUTES

June 23, 2004

Good evening and thank you for coming.

My involvement with the FTA has been a learning experience for me

and I want to share it with you this evening.

First let me tell you my ideas about trade agreements in general,

so you will know the preferences I bring to the problem.

Second I will tell you why I sit before you tonight.

Third I will overview some of the issues I learned during my testimony,

which we can talk about in the Q&A session if there is interest.

Fourth, I will tell you about the substance of my testimony.

Last, I will tell you about what happened after my testimony and

its significance.

I will take a bit more time on background than the other panelists

because I will make some strong statements tonight and I want you to

know they are well thought out and fully documented.

I. MY APPROACH TO THE FTA ISSUE

From my professional study of economics I believe in the theory of

comparative advantage. From my personal experience of life, I

believe that clear rules, vigorously enforced, make civilized life

not just possible but productive and efficient.

As a small businessman I know that both the big and the small have

both advantages and disadvantages. What makes it possible for

everyone to live together is clear rules.

For these reasons I favor an FTA. But I favor a good FTA, not a

sham.

I know also that trade is about more than money; it is about the

livelihoods, health and safety, and even the personal identities

of real people. I sympathize with concepts like special sectoral

exceptions, transitional periods, and readjustment assistance, on

the road to the ideal of international comparative advantage.

II. WHY I AM HERE

I came first to Thailand in 1967 and I have done a lot of things

since then both here and abroad. I served in the U.S. Army for

28 years, two of them on active service in Vietnam. I was a

journalist for a while until I found I couldn't live on it. I was

a consultant to private firms, international agencies and the U.S.

government. Later I designed a unique electronic device which I

had manufactured for me here for export.

In the course of all this I became involved in some litigation

here in Thailand which went on for 20 years, involved 11 attorneys

and 23 court cases. Many unexpected and disappointing things occurred.

I testified in court, in Thai, hundreds of times. Twice I had to

cross-examine hostile witnesses, one of them a cabinet member,

because my attorney was lying in hospital the only survivor of a

bombing which killed 12 other people on the steps of the Korat courthouse.

When the Thai-U.S. FTA negotiations came along, I wished to bring

my long and difficult experience to bear in the public interest. I

had faith this would succeed because of something similar I did

30 years ago, when I wrote quite a famous book on Vietnam, 'War Comes

to Long An'. Many people are alive today because I wrote this book.

[ Wave book around ]

The 23 cases involve not companies but real people, some of them minors.

All of the important points are detailed on a website but no names are

mentioned because the names are unimportant. What is important,

and this is where the FTA comes in, is what they reveal about the

reliability of the law enforcement system in this country and what

that means for this country's ability to deal with the international

trade system.

III. THE U.S. FTA PROCESS

The current process began with the Trade Act of 2002, which

established a series of procedures for the executive branch to

negotiate FTAs, under a joint Senate-House Congressional Oversight

Group. There is also a Private Sector Advisory Group.

This law provides for public hearings, announced in the Federal

Register, at which any affected party may testify on the record.

[ Wave Federal Register announcement ]

One submits his oral testimony in writing beforehand, the

Committee read and prepare questions, and one testifies orally for

15 minutes on the appointed day.

The Committee may request an additional written submission, which

they did in the case of myself and several other witnesses.

After the hearings formal negotiations begin, which is what happens

Monday in Honolulu. Then the hard stuff is on the table: what each

side will try to get, whose interests it will sacrifice, how

strenuously each will push for what.

What kinds of things at issue

- trade procedures (e.g. rules of origin)

- numbers (rates etc)

- rights of establishment

- non-discriminatory treatment

- enforcement procedures

See the Singapore-U.S. FTA, which some see as a template for Thailand

[ Wave Singapore-U.S. FTA around ]

IV. MY TESTIMONY

I was the only witness from Thailand

The factual basis of my testimony was a series of abuses of power to

help a Thai swindle a group of foreign victims, and then to cover up the

swindles. The principal perps were in the Attorney General's office

and in a state-controlled bank under the Ministry of Finance. These

events occurred some years back and have nothing to do with the present

government.

Refer to the handout passed about the room already for a summary from

the website where all this material has been posted.

[Mention <http://www.camblab.com/thai_02.htm>.]

I have a few copies of the actual testimony (3-1/2 pages) and a few sets

of the full documentation package from the website, if anyone wants

to look at it now with a view to posing questions later. These are

are available up here at the table but please share with your fellow attendees.

I will now just summarize a few words from the heart of my actual

testimony because it forms the foundation of my strong conclusions.

"When it became clear to us that we were up against those above the

law in Thailand, we sought help from our Department of State which

sent the Thai Foreign Ministry a polite diplomatic note essentially

saying "Please tell us none of the allegations in the hundreds of

pages of enclosures is true, but if any are kindly tell us how you

intend to remedy the injury to the affected American citizens".

[ !! Wave the documents !! ]

In parallel to this diplomatic note, I myself personally contacted the

following who share responsibility for righting the misconduct:

* The Secretary to the Cabinet

* The Senior Policy Advisor to the Prime Minister

* The Permanent Secretary of the Ministry of Finance

* The Executive Chairman of the state-controlled bank

* The Attorney General

* The Minister of Justice

* The Legal Ethics Committee of the Law Society of Thailand.

I am not pleased to have to tell you that nothing good happened after

two decades of litigation.

* We obtained a Supreme Court judgment to liquidate the tiny remnant

of unlaundered assets but were informed the title deeds had

mysteriously disappeared from the Court.

* The Law Society of Thailand declined to discipline the attorney who had

rigged a sham auction to launder part of our assets, not because there

was no evidence (we had his confession in open court) but because this

is deemed a legitimate legal tactic in Thailand.

* The responsible public prosecutor refused to prosecute a blatant case

of asset laundering. We conducted a private criminal prosecution

(permitted in Thailand) and gained a conviction. We later discovered

one member of the prosecution staff had a financial interest in the

laundering transaction.

* Upon my complaint the Attorney General investigated the matter; I was

deposed for three days and submitted irrefutable evidence of criminal

activity by the named prosecutor. The Attorney General subsequently

denied all the allegations and exonerated his subordinate. I later

obtained more evidence and submitted it to the Prime Minister. A new

investigation has been completed. The PM's office refuses to allow me

to see the report, even though I was the one who filed the complaint

and am legally entitled to see it.

* Yesterday [speaking in March] was one year to the day since our

Ambassador delivered the above-mentioned diplomatic note to the Thai

Foreign Minister. To this day the Thai Ministry of Foreign Affairs

has ignored the matter.

* To this day every official involved in the misconduct remains at liberty

to victimize other Americans.

* With one humourous exception I can relate at question time, every one

of the agencies contacted has ignored, failed to act upon, or actively

rebuffed our attempts to make the Thai law enforcement system work.

This was to be the end of my oral presentation but something just came

in this morning I would

like to share with you. It's an e-mail from an American attorney who

actually read my testimony yesterday on the Internet. And he sent me a

message this morning. He's a law professor in Thailand. He's lived there

for 12 years. He asked me to read this to you. He said, "As an American

and a lawyer who has lived in Thailand for the past 12 years and having

taught at Thai law schools, I can confirm the essence of your testimony.

There is very little idea in Thailand of the rule of law as we know it

and the worst offenders are those in power. You might make a point in

your testimony of how important the concept of status is in Thailand and

how those who have high status here feel that they are really above the

laws. It's one of the reasons that I am leaving Thailand".

Other panelists here, and other witnesses in the Washingon hearings,

addressed issues of who among the public will benefit, whether the public

has had adequate notice, which economic sectors should benefit, or

be protected, or whatever.

I addressed a completely different level of issue: Can Thailand

sign an FTA with the United States now?

An agreement means a meeting of minds to exchange obligations, which

one must perform. It presumes good faith.

However these facts clearly void the ordinary presumption of good faith.

The Thai government lacks the legal capacity to contract with the

United States because it has dealt in bad faith with my government on

the issue of the rule of law, which is pivotal to the success or failure

of a signed agreement because it goes to the issue of enforcement.

The Thai government is testing how far they can ignore the pesky issue

of the 'rule of law'. They will sign anything, in the expectation that

they will not be pressed to fulfill their word. It is equally clear

that unless this matter of the rule of law is addressed before the signing,

no grievant under some future FTA can ever expect to receive any better

treatment from the Thai government than have the victims whose grievances

were documented in the diplomatic note.

From long contact with many responsible officials, I do not believe they

are bad persons, although a foreigner might easily draw that conclusion from

the facts. With some exceptions I believe they are good and sincere people.

But sincerity cuts both ways. Clearly they are sincerely indifferent to

the rule of law, and completely untroubled by all the blackhats rampant

in the state apparatus.

It is a matter of completely different perspective between Thai and

foreigners, for whom these are grave issues demanding urgent attention.

In many countries, a catastrophic state of the rule of law such as

exists here in Thailand would have alarm bells ringing all over the

capital city. Here there is silent acceptance, except for a few chronic

whiners who keep writing letters to the editor.

For grievants, there are three routes in general under trade agreements.

1-Local law enforcement system -- this is risky in Thailand unless

you are in dispute with a nobody

2-International arbitration, but Thailand has not adhered to the ICSID

so that is not open.

3-FTA-defined dispute resolution process; some on the U.S. team are

looking at the Singapore-U.S. FTA as a template. But that

mechanism is completely impractical in Thailand because the

predicate is absent: no local enthusiasm for the rule of law.

That is why many who seek an FTA with Thailand are seriously worried,

because enforcement is the heart of the matter, expecially for the

areas of intellectual property, drugs, processes and the like.

If there is no commitment to enforcement, an FTA will be a sham.

V. WHAT HAPPENED AFTER MY TESTIMONY

The wish lists and practical suggestions have been put in the USTR hopper.

I visited with the East Asia and Pacific Bureau of the State Department

and with key staffers of

* the House of Representatives Ways and Means Committee Subcommittee

on Trade

* the House of Representatives International Relations Committee

Subcommittee on Asia and the Pacific

* the United States Senate Finance Committee Subcommittee on

International Trade

which three will assist their principals on the COG in monitoring

and guiding the negotiations with Thailand.

They are very interested in the issue I raised, not because of the personal

interests of the victims in these legal cases, but for what the Thai

indifference to this official misconduct and active coverup of the

misconduct says about the absence of legal protection for Americans in

Thailand.

I should add that the greatest beneficiaries of a restoration of the

rule of law would not be foreigners but the Thai people themselves.

I made this point in my Washington testimony. I am proud of this and

of the possible role that the FTA negotiations can have for the

people of Thailand themselves.

After my testimony I received an e-mail from another witness, head of

Asian affairs for a prominent U.S. trade association, on the subject

of the rule of law about which I had testified:

"The FTA with Thailand will take 2-3 years to complete so we have

time in terms of getting the Thai to understand what the agreement

needs to be . . . ."

This goes to the point of the Thai willingness to negotiatiate substantive

provisions and to sign anything, but disinterest in the rule of law which

is essential for a successful FTA.

I must tell you I was thrilled by this experience of American democracy

in Washington in March, where any party could make a solemn statement for

the official record. I was very proud of my country.

Perhaps of interest to you: while still in Washington I received an e-mail

from a Thai senator, which I quote in part:

"In the Thai Senate we always try to ask the government to bring

up the FTA agreement for approval. But they constantly ignore our

call. I wish my government had respect for the Senate as your

government does."

There is a lot of detail here. I welcome any questions you might have

at the end of the presentations.

E:\CLAIM\PRIVATE\0623TALK.TXT June 23, 2004

------------------------------------------------------------------------------------------------

[fatter than harry]

Thanks for taking the time to place the link, I can't get it to work though I did go to the camblab website but couldn't find the link to it

[Dutchy2]

Thanks for taking the time to place the link, I can't get it to work though I did go to the camblab website but couldn't find the link to it

I'm not sure if it works, this is pdf file number 1:(images and Thai scripts documents are missing)

ADVENTURES IN THAI JUSTICE

PART ONE—THE LAW SOCIETY

by

Jeffrey Race

Thai leaders of old put great effort into their

legal system, so it would gain acceptance for

Thailand on the international stage of trade

and diplomacy. Recent developments have

raised the issue anew, as seen in the headlines

illustrated here. The problem is so severe that

many informed foreign investors, like the

influential California Public Employees

Retirement System (CalPERS) now routinely

shun the Kingdom.

Why? How often, and for whom, is the Thai

justice system an ‘injustice’ system? The incidents

recounted in this series of articles all

befell educated foreigners with the best

legal counsel Thailand has to offer.

After reading this series, answer the

question for yourself and then imagine

what happens to those lacking an educated

foreign litigant’s advantages.

Do recent bright spots, like procedural

changes for continuous hearings,

address the real causes of the world’s

perception of Thai justice? This series,

recounting four real-life incidents, will

let you draw your own conclusions

what the problems are and what might

be done when comes the day that persons of

good will decide to improve the reputation of

Thai justice.

The writer knows the intimate details of these

sad events from his role preparing the documentation

and assisting the conduct of these

cases on behalf of foreign victims. Some

details have been slightly changed or

obscured to protect minor children and other

innocent parties from reprisal or physical dan-

Copyright © 2003 by Jeffrey Race

ger. (This is hardly hypothetical: one lawyer

on these cases was the only survivor of a

bombing on the Korat courthouse steps which

killed 13 others including his client.)

Misconduct is common worldwide. What is

uncommon is what responsible Thai officials

left undone once informed of offensive activities

(many of them criminal acts) by those

under their supervision.

This series aims to clarify what might be done

to restore the good name of the Thai legal

system. Only the Thai people can do that. But

they need the facts.

THE FIRST INCIDENT

This first in our series actually occurred after

the other three, but it is of such basic importance

that it’s worth the lead, because it shows

how deep are the problems.

Judges and lawyers are the justice system’s

key players. While judges make the decisions,

the great bulk of litigation activity takes place

out of their sight. They see only what filters

through to the transcripts. The honesty of the

lawyers is thus the first bulwark of the law.

The Law Society of Thailand guarantees the

integrity of lawyers, issuing credentials

required to practice. Its Legal Ethics

Committee investigates accusations of dishonesty

and is supposed to discipline those

who would defeat justice or commit injustice.

If this first guarantee fails, the battle is lost

before it starts.

BACKGROUND

In this case, a credulous foreigner invested

with a Thai national in a land development

project; unfortunately as sometimes happens

the two fell out. A provincial court accepted

the foreigner’s suit for an equitable division of

the disputed land and structures. During the

litigation the Thai party decided to change

legal title to the structures so they would

escape division in the impending judgment.

To do so he arranged a sham auction while the

foreigner was abroad, structured so that only

the Thai partner and accomplices could bid.

The sham auction was arranged with great

skill and refinement. First, the Thai enticed a

complaisant lender holding an intentionally

defaulted mortgage (a state-controlled bank,

to be detailed in the third article in this series)

to conduct a needless auction with the intention

from the beginning to amend the auctioned

items on the very morning of the sale,

so all genuine bidders would be forced to

drop out. Second, the Thai arranged accomplices

to attend the sham auction and, when

all the genuine bidders had departed, to bid

agreed prices so the perpetrator would win.

All went according to plan. The court

approved the auction, duped into believing

there had been genuine competition between

arms-length bidders according to the spirit

and letter of the law. The Thai perp obtained

assets valued over 30 million baht for only 2.5

million baht, freezing the foreigner out of his

own property—”legally”. Abroad at the time,

ADVENTURES IN THAI JUSTICE PART ONE—THE LAW SOCIETY PAGE TWO

The Nation, February 20, 2002

the foreigner never knew what happened to

him until it was too late.

HOW THE LAW SOCIETY

BECAME INVOLVED

Such swindles probably occur weekly or even

daily somewhere in the Kingdom. This one

became remarkable only because its mastermind

was actually a lawyer notionally certified

“honest” by the Law Society. Worse: he

not only planned the script (his client lacked

skill to structure such a complex legal charade),

he played a key part in a sham dramatic

performance before the court by bidding in

the hoax auction.

Through an accident of fate, evidence of the

lawyer’s role came into the hands of the victim,

who petitioned the Law Society to disbar

the mastermind since he had not only planned

a fraud upon the public but also participated

as a bidder in the sham auction.

From experience abroad the victim was sure

The attorney’s testimony that he was “always the advisor” on the auction matter

The intention of Atty _____ in bidding [against

his own client] was to deceive the court into

believing there had been a genuine contest of

bids, according to the intent of the law. But in

fact the price Atty _____ bid had been agreed in

advance.

. . .

[Atty _____’s client arranged with the creditor

bank to sell separately the structures from the

underlying land] knowing that no one else

would bid except the co-conspirators, because

[the client’s name alone] was in the title deed.

. . .

Atty _____ knowingly conspired in this plan . . .

to use the court process . . . dishonestly . . . to

injure another.

ADVENTURES IN THAI JUSTICE PART ONE—THE LAW SOCIETY PAGE THREE

this would be an open-and-shut disbarment

case, since the evidence consisted solely of

indisputable court documents. Imagine his

astonishment upon receiving this letter from

the Law Society’s Legal Ethics Committee.

Atty _____ had no right to join the auction when

it was apparent this was part of a scheme to

evade the court’s judgment . . . because the Law

Society’s code of ethics forbids an attorney to

This transparently nonsensical reply puzzled

the foreign victim but shortly new documents

came to hand, which he submitted to assist

the Law Society to bring the renegade attorney

to justice. In one document Atty _____

admits he knew of his client’s plan (essential

to extinguishing the foreigner’s ownership

The attorney is unexpectedly forced to admit his role in the hoax auction

And how did the Law Society respond? The

facts of the case and the logic of the accusation

being irrefutable, the Law Society didn’t bother

to respond; it just ignored the accusation,

never replying to the foreign victim.

THE NEXT STEP

Through another accident of fate the lawyer

mastermind later volunteered to testify in

related litigation and was unexpectedly asked

to describe his role in the hoax auction some

Atty _____ was one of several bidders under an

official auction procedure. It is unlikely that a

judgment was frustrated or that the court was

deceived. The matter does not raise any issue

requiring an investigation.

ADVENTURES IN THAI JUSTICE PART ONE—THE LAW SOCIETY PAGE FOUR

years before. From the reproduction of the

mastermind’s testimony it can be seen that he

at first denies recalling his bid, but when confronted

with the auctioneer’s report, he states:

In other words, he made a full confession to

conspiring to rig a court-ordered auction.

The foreign victim submitted this new document

to the Law Society in full confidence the

before adjudication) to auction separately the

structures from the underlying land. He also

admitted he was ”always the advisor” in this

matter.

Additional documents revealed he knew his

client had sufficient funds to settle the debt

with the creditor bank, so an auction had no

purpose other than to extinguish the ownership

of the foreign victim. The victim wrote to

the Law Society:

According to this auctioneer’s report, I am

bidder number three . . . I remember now. . .

The Defendant told me he would bid 2.5 million

baht. I therefore entered my bid at 2.2 million

baht, having informed the Defendant that I

would bid lower so that the Defendant would

win.

evade or to assist a client to evade the court’s

judgment.

Court auctioneer’s report showing identity of bidders, bid prices, and bid

winner. The third bidder, at Bht 2,200,000, is the lawyer mastermind. The

winning bidder (fourth entry), at Bht 2,500,000, is the half-owner of the

property who wanted to expel the co-owner before the court adjudicated a

property division. Bidder one represented the state-controlled bank which

agreed to organize the sham auction, and bidder two was a friend of the

perpetrator invited to enhance the deception of the court.

ADVENTURES IN THAI JUSTICE PART ONE—THE LAW SOCIETY PAGE FIVE

offending lawyer would now be disbarred, on

the strength of his own sworn testimony, on

two different occasions, that he had not only

masterminded the hoax auction plan but had

agreed to rig the bidding process and had

himself participated in the rigged auction.

After some months without reply the puzzled

victim personally called upon the lady staff

assistant to the chairman of the Law Society

who, looking him straight in the eye, sweetly

informed him the actions documented in

his complaint were legitimate legal tactics in

Thailand. In due course a letter arrived confirming

the Law Society would do nothing.

The Law Society’s Legal Ethics Committee is

probably not a gang of crooks protecting one

of their own. The late author of the original

letter rejecting the foreign victim’s accusation

was a well-respected professional. One current

member of the Legal Ethics Committee is

personally known to the writer.

In fact the problem is much more grave. The

problem is that the Legal Ethics Committee

members don’t know right from wrong as

these terms are understood outside Thailand. This

may contribute to the disrepute into which the

Thai legal system has fallen worldwide.

CONCLUSION

The foregoing fraud, stamped “Approved!”

by the Law Society of Thailand, was just one

piece of a much bigger conspiracy to misappropriate

a foreigner’s property. The most

powerful enablers of the conspiracy were

those acting under government authority in

the bureaucracy and in a state-controlled

bank. (The current Thai political leadership is

ADVENTURES IN THAI JUSTICE PART ONE—THE LAW SOCIETY PAGE SIX

Extract of Diplomatic Note to Thai Foreign Ministry

Publication of fair-use quotations for comment is welcome; please refer your readers for the full text to

<http://pws.prserv.net/studies>. For reproduction rights of any other type or for any other purpose please fax

Fran Collin at +1 610 254-5029. Fax all other enquiries to +1 617 623-1882.

as much a victim as the foreigners of the

schemers in the bowels of the state apparatus.)

This conspiracy was so prolonged, so injurious,

and so brazen, that the foreign victims’

home government felt compelled to submit a

Diplomatic Note to the Thai Foreign Ministry,

politely requesting investigation and remedial

action. (This is remarkable in itself because

governments almost never undertake such a

strong step on behalf of a private citizen in a

civil matter.)

Future articles in this series will detail the

brazen activities by those acting under state

control and how those responsible in the

Attorney General’s office, in the Finance

Ministry, and in the Foreign Ministry,

responded when offered evidence of likely

criminal activities in their midst.

As for the crooked lawyer, the Justice Minister

is empowered to review the decision of the

Law Society. Interested readers may wish to

observe whether he uses this power to disbar

the crook involved in hoaxing the court.

If the Justice Minister upholds rigging a courtordered

auction as a “legitimate legal tactic”

in Thailand, as the Law Society avers, it may

be a long time before serious foreign investors

like CalPERS return to the Kingdom. And

readers will no longer wonder why headlines

like those reproduced at the head of this article

flash around the world.

NEXT INSTALMENT: WHAT THE ATTORNEY GENERAL

DID WHEN OFFERED EVIDENCE OF A ROGUE PUBLIC

PROSECUTOR.

ADVEN_1.PDF ADVEN_1.QXD ADVEN_1.IDX October 15, 2003

Note: At the time of these events 25 baht equalled

one US dollar.

ADVENTURES IN THAI JUSTICE PART ONE—THE LAW SOCIETY PAGE SEVEN

[Dutchy2]

PDF2:

ADVENTURES IN THAI JUSTICE

PART TWO--CRIMEBUSTERS IN ACTION

by

Jeffrey Race

Copyright © 2003 by Jeffrey Race

This continues our series of case studies aiming

to clarify what might be done to restore

the Thai justice system to its former level of

international acceptance.

As before, identities are omitted. What matters

is how fails a system on which the public

depends, what high officials do when they

learn of failures, and how this affects the perception

of Thai justice on the world stage. As

previously noted, the writer is intimate with

the details of these events from his role in

preparing the documentation and in helping

conduct these cases on behalf of the foreign

victims.

The last article focussed on a civil matter; now

we look at a criminal case involving the public

prosecution service.

BACKGROUND

This case concerns a grand scheme to launder

property held in trust prior to a court judgment

dividing it between local and foreign coowners.

This type of laundering is apparently

quite common; what is remarkable here is

the lengths to which the principals were willing

to go to cover up their misdeeds and their

success in escaping the consequences.

The assets in question were ten rai of land

owned in common as part of a real-estate

development. Legislation and long practice

underlay the foreign party’s right in the land,

and a Supreme Court ruling confirmed this

right, giving the foreigner initial confidence in

the legal process by which he hoped to protect

his property and, ultimately, to repay foreign

loans he had contracted to make the

investment in Thailand. The problems

occurred only during the enforcement phase;

unfortunately they proved fatal. (Fortunately,

so far, only legally).

THE SCHEME

The local co-owner holding the property in

trust planned to defeat justice by transferring

the ten rai to third parties prior to judgment,

using the proceeds to buy land in the names of

dummies unknown to the foreign victim. At

one point the local co-owner urgently needed

to transfer title in view of the foreigner’s

asserted legal claim to his share of the land

and impending court rulings.

The local co-owner succeeded completely in

this plan, except for a few loose ends which

later led to litigation. The aggrieved foreigner

obtained a copy of the transferred title deed

and petitioned the court to summon the

buyer.

Normally one rehearses testimony with a witness

so as to present the issues most clearly

and not waste the court’s time. However in

this case the foreign victim had only a name,

and no chance to meet the buyer beforehand.

Just as he feared, the buyer was a prominent

Bangkokian, furious at being summoned. In

the moments before the presiding judge

appeared, the foreign victim attempted to

placate her by saying that he had no issue

with her, wishing only that she recount the

facts as she knew them. Her mood improved

but the foreign victim remained anxious.

Lacking details the foreigner’s attorney was at

a disadvantage in questioning the hostile witness,

so he simply posed the broad question

how she had come to learn about the property.

She testified:

I know Defendant 1 because the Assistant

Prosecutor [from _____ province] told me that

Defendant 1 wanted to sell the contested land

because it was about to be seized [by the Court].

ADVENTURES IN THAI JUSTICE PART TWO—CRIMEBUSTERS IN ACTION PAGE TWO

Land buyer’s testimony implicating public prosecutor

This Assistant Prosecutor moonlighting as a

real estate broker turned out to have been a

close friend of the Thai co-owner; she had

learned about the contested property in the

course of official duties. The buyer’s testimony

showed that the Assistant Prosecutor well

knew the land offered for sale was already

under legal claim—prima facie evidence of

willing participation in a criminal case of

swindling and/or defrauding a creditor.

The foreign victim had already obtained an

injunction barring sale of the land. An official

of the provincial governor’s office informed

the foreign victim’s attorney that the named

Assistant Prosecutor had personally lobbied

to have the injunction revoked (now, the foreign

victim began to understand, so she could

market the land).

A STRANGE COINCIDENCE

At the same time a very strange set of events

began to puzzle the foreign victim, who had

filed a police report denouncing the laundering

of the co-owned assets. The police dutifully

investigated, found probable cause of a

criminal offense, and submitted the matter to

the Public Prosecutor for further action with

the court. However the Public Prosecutor did

nothing, refusing to provide the foreign victim

any explanation.

Suddenly it all became clear: the Assistant

Prosecutor mentioned above worked in the

very office to which the police had sent the

case file! As long as one of its own staff was a

witting go-between in a scheme to defraud a

foreigner, the office could hardly file a case

without exposing

the whole

matter and causing

a scandal.

THE FOREIGN VICTIM STRIKES A

BLOW FOR HONESTY

In April of 1998 the foreign victim requested

the Attorney General to investigate the role of

the Assistant Prosecutor whose duty it was to

uphold the law but who instead participated

in a scheme to launder his property. In the

same letter he requested investigation of suspected

prosecutorial misconduct viz. refusing

to prosecute a brazen crime for fear prosecution

would reveal a staff member’s role in

laundering contested assets.

The Attorney General moved quickly, inviting

the foreign victim to document the complaint

and deposing him for a total of six

hours over three days. After the exhausting

deposition the appointed investigator (a kindly

senior prosecutor on the verge of retirement)

stated mournfully that he was sure the

foreign victim would receive satisfaction

because the case was so outrageous and the

documentation so complete. The foreign victim

was greatly encouraged.

ANOTHER AMAZING LETTER!

In February of 1999 the Attorney General

announced the conclusion of his investigation:

ADVENTURES IN THAI JUSTICE PART TWO—CRIMEBUSTERS IN ACTION PAGE THREE

the buyer had denied the Assistant Prosecutor

had participated in the sale, so no action

would be taken. This startling letter added

that “the decision not to prosecute conformed

to the facts and the law”.

Since this conclusion directly contradicted the

buyer’s sworn testimony, the foreign victim

grew uneasy, so thought to contact again the

kindly senior investigator. Regrettably he had

now retired but the foreign victim was able to

talk to a staff assistant to the Deputy Attorney

General himself on March 4.

As soon as the foreign victim identified himself

the staff assistant said he knew all about

the case—apparently it had become quite

notorious among senior officials. The foreign

victim gently pointed out that the conclusion

Letter from Attorney General announcing result of intensive investigation

ADVENTURES IN THAI JUSTICE PART TWO—CRIMEBUSTERS IN ACTION PAGE FOUR

of his superior’s letter directly contradicted

the buyer’s sworn testimony. The assistant

stated that witnesses often lie in court, so one

could not rely on this testimony to implicate

the Assistant Prosecutor.

This struck the foreign victim as a rather odd

view given that prosecutors every day use

such testimony to send criminals to prison.

The foreign victim reluctantly concluded that

the Attorney General’s staff was determined

to whitewash this series of dishonest actions

no matter what the facts.

MORE UNEXPECTED TESTIMONY

At about this time a legal change moved

responsibility for this type of complaint to the

Prime Minister. Also by chance the Thai coowner

had the misfortune to be summoned to

testify in further litigation and was asked to

identify the middleman and the reason the

middleman gave the buyer for the sale’s

urgency. The co-owner confirmed the

Assistant Prosecutor had indeed been the gobetween

in the sale of the land and that the

reason she gave the buyer was indeed because

the land was about to be seized by the court.

In December of 2000 the foreign victim provided

a copy of this testimony to the Attorney

General and requested a re-investigation,

since now both buyer and seller had given

identical sworn testimony the Assistant

Seller’s testimony confirming role of the Assistant Prosecutor in the land sale

Prosecutor was the go-between in this dishonest

transaction.

When this request received no response after

a year’s patient wait, the foreign victim personally

visited the Attorney General’s office

near the City Pillar, where he learned that

the matter had been re-investigated and a

report sent to the Prime Minister. A phone

call confirmed the report was sitting on the

desk of a career civil servant in the Prime

Minister’s office. (The Prime Minister himself

had no reason personally to know of the

matter.)

This reinvestigation may have been another

whitewash. Or it may have been conducted

honestly, in which case the government

agency is on the hook for substantial damages

to the foreign investor. Either way it’s

a tough problem, and perhaps no wonder

that someone in the Prime Minister’s office

refuses to release the report to the victim.

THE VICTIM PLODS ON

Thai law provides one very big advantage to

victims like this intrepid foreigner. When

agents of the state refuse to perform their

duty, an aggrieved party may launch a private

criminal prosecution. The foreign victim

did exactly this, taking up the duty

(unfortunately at great expense) that agents

of the state refused. The local court acceptPublication

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ed it and handled it in exemplary fashion,

even issuing an arrest warrant for the defendant

who at one point attempted to avoid

appearing.

On May 22, 2002, the court convicted the Thai

co-owner of swindling under Section 352 of

the Criminal Code, which shows that the

prosecutor’s decision not to litigate was at the

least suspect and at worst a criminal act. The

Assistant Prosecutor remains at liberty to collude

in frauds against other foreign investors.

The foreign victim remains convinced that the

prosecutorial staff in the small provincial

office where this occurred evaded their duty

in order to protect a criminal in their midst.

The truth may lie in the suppressed investigation

report now sitting in the Prime

Minister’s office.

Unfortunately the criminal conviction has

only token value, since the foreign victim’s

laundered assets are now irretrievably in the

hands of dummies.

CONCLUSION

Justice rides a slow horse everywhere. In fact

this type of criminal activity and criminal

coverup occur in the foreign victims’ homeland

as well. But there the perps in such

crimes and coverups go to prison, an outcome

foreigners find more congenial to their investment

decisions and which were optimistically

expected in Thailand as well. When the local

perps and their high-level protectors in this

case go to prison in Thailand, foreign

investors will surely take favorable notice.

NEXT INSTALMENT: A STATE-CONTROLLED BANK

INVOKES ITS OFFICIAL CONNECTIONS TO AVOID

JUDGMENT ON THE MERITS.

ADVENTURES IN THAI JUSTICE PART TWO—CRIMEBUSTERS IN ACTION PAGE FIVE

ADVEN_2.PDF ADVEN_2.QXD ADVEN_2.IDX October 15, 2003

Note:

One rai equals 2/5 acre

At the time of these events 25 baht

equalled one US dollar

[Dutchy2]

Part 3:

ADVENTURES IN THAI JUSTICE

PART THREE—THE BANK AND THE COURT

by

Jeffrey Race

Copyright

©

2003

by

Jeffrey

Race

THE KEY ENABLER OF THE

HOAX AUCTION

The nameless Thai co-owner introduced in the

previous instalment needed accomplices to

carry out the plan to swindle the foreign victim

of a collection of valuable teak houses.

First to volunteer was the attorney who crafted

the complex plan. Second and crucial was

a creditor willing to petition the court to conduct

an auction which would turn out to be a

fraud upon the public and a hoax upon the

court. Who would volunteer?

The crafty co-owner had carefully prepared

for this contingency by defaulting on an earlier

loan from a state-controlled bank, conveniently

headed by a close relative. The bank

had in due course sued to enforce the loan, the

court had issued a consent judgment, and

the co-owner had again refused to pay, so setting

the stage for the scheme recounted here.

THE SWINDLE PLAN

In mid-January of 1992 the co-owner visited

the bank headquarters and informed the loan

officers that he was the _______ of the bank’s

chairman. Trading on this relationship (and

without the chairman’s knowledge), the coowner

requested the chairman’s subordinates

to petition the court to auction the mortgaged

property, so as to convert title from joint to

sole ownership in his name alone. (This intention

may not have been known to the bank at

the time but was later revealed in a legal

pleading delivered to the bank.)

In order to succeed in changing title, the coowner

requested the bank officials to employ

an irregular procedure: the bank would first

petition the court to auction both land and

structures together. If the court agreed and

announced the auction, on the morning of the

auction the bank was to request the court to

Thai co-owner testifies admitting request to bank for irregular procedure

ADVENTURES IN THAI JUSTICE PART THREE—THE BANK AND THE COURT PAGE TWO

The collection of teak houses the object of the swindle recounted in this article

change the property to be auctioned, omitting

the land and auctioning only the structures.

According to the co-owner’s testimony in

later litigation, the bank officials agreed to this

plan.

The fiendish purpose of this irregular procedure

was to attract only bidders interested in

either the land alone, or in the land and buildings

together. No one interested only in the

structures would bid, because these were not

advertised as being auctioned separately.

Having agreed to this plan, a bank official on

January 24 petitioned the court to auction all

items foreclosed in the earlier enforcement

action, namely both structures and the underlying

land. The court approved and advertised

the auction for March 4.

Precisely according to the Thai co-owner’s

plan, on the morning of auction the bank petitioned

the court to auction only the extremely

valuable teak houses.

The bank’s request noted this was because

January 24 bank petition to auction both land and structures

ADVENTURES IN THAI JUSTICE PART THREE—THE BANK AND THE COURT PAGE THREE

tion of the teak houses, the bank also agreed to

the Thai co-owner’s request to release the

mortgage on the ten rai of underlying land,

even though the loan remained in default.

Even more amazingly, the bank’s own attorney

attended the handover of the title deeds at

the Land Department office, when the coowner

sold them to third parties (getting 14

million baht in the process), but he demanded

none of the proceeds even though the Thai coowner

still owed millions of baht to the bank

and had been in default many years.

THE VICTIM LEARNS HE’S FLEECED

At the time of the auction the foreign victim

was abroad but learning of it on his return he

petitioned to rescind it as part of the original

foreclosure case. The Trial, Appeal and

Supreme Courts all ruled that the auction was

legal and complete. A well-meaning judge

informed the foreign victim that in the facts of

this case the law provided for rescission only

were the state auctioneer guilty of misconduct.

Here the alleged conspiracy to defraud

was by the bidders. He suggested the victim

sue the bidders separately.

This seemed like good advice and the foreign

victim sued the co-owner and the state-controlled

bank which, he had evidence to

Bank’s petition on morning of auction to change auctioned property

the Defendant has paid part of the debt and has

requested the Plaintiff to sell at auction only the

structures.

However the bank concealed the fact that

there had never been any intention to auction

the land. The court did not know that the

bank’s January petition was but a tactic to

deceive the public about what property

would actually be auctioned, so that only the

Thai co-owner and accomplices would stay to

bid after the new announcement on the morning

of the auction.

According to later testimony by the official

auctioneer, on the morning of the auction a

large crowd of bidders arrived in response to

the first public notice but when he announced

that only the structures would be auctioned,

every single person departed except the Thai

co-owner, a close friend privy to the deception,

the lawyer mastermind, and the bank’s

own lawyer. The Thai co-owner submitted

the winning bid (of four) by prior agreement

with the co-conspirators, so as to delude the

court into believing a genuine auction had

occurred.

POOF! THE LAND DISAPPEARS TOO

In an amazing sideshow, just prior to the aucADVENTURES

IN THAI JUSTICE PART THREE—THE BANK AND THE COURT PAGE FOUR

believe, had conspired to swindle him. The

action sought return of the contested property

to its original state, or 21 million baht in damages,

since the valuable teak houses were

appraised at over 30 million baht but were

transferred by deception of the court for only

2.5 million baht.

Plaintiff’s witnesses completed testimony and

submitted documents indisputably proving a

scheme to abuse the legal process to swindle

the foreign victim. The Thai co-owner gave

direct testimony but on the day set for crossexamination

refused to enter the witness box.

In view of the incriminating documents before

the court the bank itself dared not allow any

of its officers to testify, declining to introduce

even a single witness to affirm the honesty of

its actions.

THE CO-CONSPIRATORS’ ESCAPE PLAN

Since clear evidence of the swindle had been

admitted to court, and since neither defendant

dared produce any admissible testimony, the

foreign victim was now quite confident of

receiving justice. Instead a remarkable incident

took place. The bank’s attorney presented

a document stating that the bank had withdrawn

its foreclosure against all the property

of the Thai co-owner (its co-defendant in the

case). Both defendants then claimed that as a

result the contested property had returned to

its original condition as the foreign victim

demanded.

In a subsequent bench conference the presiding

judge stated to the defending attorneys

that it was hard to see how this could possibly

remedy the plaintiff’s loss since part of the

land underlying the structures had already

been sold to third parties. After some dispute

the judge withdrew to chambers to consult a

colleague jointly sitting on the case.

Shortly the judge returned, completely transformed,

declaring the bank’s action satisfied

the court. Unless the foreign plaintiff withdrew

his suit, the court would rule against

him, but if he agreed, the court would return

his 200,000 baht fee. The foreign victim was

deeply shocked by this bizarre development,

fearing matters had just moments before been

arranged behind the scenes so that regardless

of the incriminating evidence, the suit would

be dismissed without adjudicating the behavior

of the state-controlled bank. But he had

sufficient faith in Thai justice to give the court

an opportunity to prove his fear wrong, so he

requested adjudication. This courage cost

him 200,000 baht and lost him the case. The

court dismissed his action.

THE HIGHER COURTS RULE

Still confident the Thai legal system could

give justice to a foreigner in dispute with a

state body, the foreign victim took his evidence

to the Appeal Court, which dismissed

his case with identical reasoning. Undaunted,

the victim paid yet a third 200,000 baht fee to

raise the facts before the Supreme Court.

In his pleading he pointed out that withdrawal

of a foreclosure action has no effect on legal

title and that ownership of the disputed structures

had definitely passed to the Thai coowner,

as proven by the court’s own calculation

of the transfer fee at the rate of 5 per cent

on the value of transferred property rather

than the rate of 3.5 per cent used for transactions

in which foreclosed property is released.

In a shock ruling the Supreme Court upheld

the lower courts, reasoning

ADVENTURES IN THAI JUSTICE PART THREE—THE BANK AND THE COURT PAGE FIVE

Court’s official’s fee calculation at 5 per cent (used for items changing title)

once it appears that Defendant 2 has entirely

rescinded its foreclosure, [the status of the buildings]

reverts to [joint] property of the Plaintiff and

Defendant 1 . . . . Defendant 1 has not . . . . taken

any steps to transfer title. Therefore there is insufficient

evidence that Defendant 1 has taken title from

the auction.

WHAT THE LEGAL EXPERTS SAY

The foreign victim has yet to find a single

attorney who believes this Supreme Court

judgment conforms to the laws of the

Kingdom. His own counsel (a distinguished

attorney who has litigated many cases in the

public interest) advises that it is a legal impos-

Scale of court fees specifying different

rates for sold and released items

sibility because it contradicts a previous

Supreme Court judgment which settled title,

because it contradicts the Civil and Commercial

Code Section 509 (“an auction is completed

when the auctioneer indicates his

agreement by striking the gavel”), and

because it was composed without regard to

the evidence in the trial record. It is also formally

irregular because it does not document

its reasoning as required by Civil Procedure

Code Section 141. And in the foreign victim’s

view it shocks the conscience by violating a

fundamental principle of jurisprudence: a litigant

may not profit from his own misdeeds

—in this case, a swindler profiting by a fraud

upon the court itself.

THE POWERFUL PRESSURE

THE COURTS

We know from the recent public declaration

of a retired Constitutional Court President of

the “immense pressure” placed upon the Thai

judiciary to rule for the powerful. In this case

the state-controlled bank did not hesitate in its

pleading to invoke its official connections;

what its executives did in private we can only

speculate.

Subsequently the foreign victim attempted to

provide complete documentation on this disturbing

saga to the new Executive Chairman

of the bank and to senior officials of the

Ministry of Finance which supervises the

bank. All attempts at contact were (once it

was known the subject was misconduct by

bank officials) ignored or decisively rebuffed

by the responsible officials.

Publication of fair-use quotations for comment is welcome; please refer your readers for the full text to

<http://pws.prserv.net/studies>. For reproduction rights of any other type or for any other purpose please fax

Fran Collin at +1 610 254-5029. Fax all other enquiries to +1 617 623-1882.

In such circumstances we must feel sympathy

for the judges subjected to such irresistible

pressures. While this particular foreign victim’s

case is final before the Thai courts, it is

just the beginning for Thailand in the Court of

World Opinion and as a player in world capital

markets. Bank officials may have thought

they were cleverly saving the bank from paying

21 million baht in damages, but they will

ADVEN_3.PDF ADVEN_3.QXD ADVEN_3.IDX October 15, 2003

ADVENTURES IN THAI JUSTICE PART THREE—THE BANK AND COURT PAGE SIX

cost the nation many times that sum every

year forever until those with its best interest at

heart act to rescue the Kingdom’s credibility.

NEXT INSTALMENT: ARE FOREIGN PERSONS TREATED

BETTER THAN FOREIGN PROPERTY?

The Nation, October 21, 2002

Note:

One rai equals 2/5 acre

At the time of these events 25 baht

equalled one US dollar

[Dutchy2]

Part 4:

ADVENTURES IN THAI JUSTICE

PART FOUR—ALICE IN THAILAND

by

Jeffrey Race

A trusting foreigner in a provincial

court hoped that like Alice he could

awake from the curious dreamlike

place where judgment comes first and

evidence later. Unfortunately it was

no dream, and like the Rabbit the foreigner's

attorney had to push hard for

his evidence to be considered. He

failed: our concluding true story.

Unlike earlier case studies dealing with

property, this one examines the fairness

offered to foreign persons, obviously

significant for anyone considering

investment or residence in

Thailand.

JUDGE A

At the first hearing in a child custody

matter, the presiding judge announced

he had already decided for the plaintiff

because she had Thai nationality, so

few evidentiary hearings need be

scheduled. Judge A so stated knowing

nothing but the litigants' nationalities.

The foreign defendant and his Thai

attorney viewed this as tantamount to

declaring the court considered any

Thai, of any character, to be superior to

every foreigner. As it was impossible to Copyright © 2003 by Jeffrey Race

Sentence first, verdict afterwards!

. . . . .

Not yet, not yet! First witness!

. . . . .

“I've had such a curious dream”

said Alice.

proceed under such conditions they requested

the Director General of Judicial Region 1 to

review the matter.

JUDGE B

The Director General took the complaint seriously

and in short order Judge B replaced

Judge A. An amiable and cheerful man,

Judge B possessed poise, compassion, and

every other ideal Thai characteristic. The foreign

litigant was very encouraged and for

about two years Judge B conducted the proceedings

impartially, with no conflicts and no

problems except chronic delays in securing

the Thai party’s testimony.

JUDGE C

After his successful work in the _____ Court,

Judge B was promoted to Bangkok and succeeded

by Judge C. From the day of his

arrival, the situation reverted to be even

counsel had just resigned from the law firm to

run for Parliament. Judge C recorded the

doctor’s direct testimony, permissible in the

case of a busy witness like a physician.

According to settled practice cross-examination

would be scheduled at a later date in consultation

with both parties. Instead, Judge C

falsified the Report of Proceeding to state that

the foreign defendant had waived crossexamination.

When he objected, Judge C

threatened to imprison the foreigner, who had

to fall silent out of fear. But he declined to

legitimate the falsified Report by signing it

because the witness was crucial in a case with

important medical considerations.

Falsification of Testimony In May of ____ the

foreign litigant brought Mrs. W____ from her

residence abroad, scheduling her to testify in

two related cases before Judge C a few days

apart. She was an eyewitness to material

issues about the credibility of the Thai plaintiff

and her practice of chronic lying and teaching

the children to lie.

Extract of complaint of judicial misconduct

worse than under Judge

A. Judge C spoke and

acted to injure the interest

of the foreign defendant

in matters great and small

and to treat the foreigner’s

concern for his children

as a senseless triviality.

Two examples will

suffice.

Falsification of Report of

Proceeding In December

of ____, the Thai plaintiff

produced a very important

witness (a doctor) but

the defendant had to

request a postponement

because his chief counsel

was ill and alternate

ADVENTURES IN THAI JUSTICE PART FOUR—ALICE IN THAILAND PAGE TWO

manually corrected the typed transcript.

Judge C’s words reveal he knew that

teaching children to lie is an evil, evidence

of which would damage the Thai

litigant’s case, so he twice falsified the

trial record.

JUDGE D

Some months later the defendant himself

prepared to testify but the presiding

judge was absent so Judge D sat to hear

the case ad interim. On calling the case he

stated that it concerned only child custody,

that it had been going on many

years, and that the defendant was wasting

the court’s time. The foreigner stated

that he believed the mother morally

unfit to raise the two children to be honest

persons. Judge D asked “I would like

to know how a foreigner could raise children

better than a Thai”, not with genuine

curiousity but to signal annoyance

at wasting time on silly nonsense.

Hearing again the theme “Any Thai is

better than every foreigner”, the defen-

Two falsified transcripts of testimony, the second corrected after objection

At one point Mrs. W_____ testified that one

of the children “said to me her mother [the

plaintiff] said it is OK to lie”, which Judge

C recorded as that the child had “said it is

OK to lie”. Minor recording errors often

occur, as a check against which court procedure

is to read the testimony back to the

witness (in this case, to the interpreter) for

correction as necessary to reflect the witness’s

actual words.

When Judge C read out the testimony, the

interpreter informed him that the words

“her mother said” had been omitted. Judge

C asked “You want her to be that awful?”

The interpreter (now a prominent attorney

and himself the son of a senior judge) stated

“I am only the interpreter. That is what

the witness testified”. Judge C replied “I

know”. Because of Judge C’s constant hostility,

the foreigner deemed it useless to

object.

Four days later Mrs. W_____ testified identically

before Judge C, who again deliberately

distorted her testimony to omit the words

“her mother said”. This time the defense

attorney himself objected. Judge C showed

an expression of great displeasure and then

ADVENTURES IN THAI JUSTICE PART FOUR—ALICE IN THAILAND PAGE THREE

dant requested to postpone the hearing, fearing

Judge D would falsify the trial record as

had Judge C.

JUDGE E

After all evidence was taken, Judge E transferred

in and was assigned to write the judgment.

His deciding principle proved identical

to that laid down by Judge Aand Judge D: no

need for facts or law in a case between a Thai

and a foreigner.

The foreign defendant had introduced 11 eyewitness

to the moral unfitness of the Thai

plaintiff, backed up by solid documentary

evidence. Judge E arrived after completion of

evidentiary hearings, so had no direct and

personal knowledge of any testimony or documents.

Summarizing a case in litigation for

over five years, his reasoning totalled 34 lines,

never mentioning one word of the testimony

or evidence of the foreigner. (According to

Section 141(4) of the Civil Procedure Code, a

judgment must document all evidence considered.

Any evidence not documented was

not considered in forming the judgment.)

In his 34 lines Judge E stressed the hearsay

testimony of the doctor never subjected to

cross-examination, about which Judge C had

falsified the Report of Proceedings. At the

same time the judgment ignored all the eyewitness

evidence, subject to cross-examination,

which had proved the truth of the case.

LEGITIMATING A CULTURE

OF DISHONESTY?

In Thailand’s civil code system Supreme

Court judgments set precedent, and the outcome

of this case may trouble some thoughtful

readers. After disappointments in the

Trial and Appeal Courts the foreign victim

raised many points to the Supreme Court in

the matter of child custody, in particular

whether a parent’s chronic lying and teaching

others to lie is material in adjudicating custody

of a minor child. The Supreme Court

declined to accept this view, ignoring even a

perjury conviction in awarding custody, signalling

as precedent that chronic lying by a

parent, and teaching a child to lie, are immaterial

to fitness for child-rearing in the

Kingdom.

What long-run consequences will this precedent

produce? Could the court’s stance be

related to the low standard of commercial

ethics seen daily, or to the brazen dishonesty

of so many public figures? Had the

Supreme Court set a different precedent,

could it have worked to raise the standards

of public and commercial ethics in future generations?

The Thai people must reach their own conclusions

on this important matter, but the

foreign victim himself, and his foreign associates,

were shocked beyond belief to read the

Supreme Court’s judgment.

OBSERVATIONS FROM FOUR

CASE STUDIES

The several foreigners involved in these cases

had some reassuring experiences and some

deplorable ones. The latter were shocking

injustices, which should happen nowhere

and certainly not in a country, like Thailand,

which advertises worldwide the equality litigants

enjoy before its courts. Several judges

dishonored the sovereign whose image

graced their hearing room by turning their

solemn chambers into Alice-in-Wonderland

theaters of the absurd.

ADVENTURES IN THAI JUSTICE PART FOUR—ALICE IN THAILAND PAGE FOUR

Publication of fair-use quotations for comment is welcome; please refer your readers for the full text to

<http://pws.prserv.net/studies>. For reproduction rights of any other type or for any other purpose please fax

Fran Collin at +1 610 254-5029. Fax all other enquiries to +1 617 623-1882.

While miscarriages of justice can occur anywhere,

these cases dramatize two noteworthy

things in Thailand. First, despite great effort,

persistence, and the best legal counsel, litigation

against the powerful is prone to fail. In

the child custody case, a foreign parent and

his two children were cruelly separated for 15

years.

In the property cases, the foreign litigants

spent stupendous sums for over a decade,

with nothing to show except judgments of

dubious enforceability. At last report most of

the title deeds to the few remaining assets

against which the foreign victims might

(someday) levy judgment were “missing”

from the court document storeroom.

Second is the attitude of many civil servants:

stonewalling and denial rather than acceptance

and willingness to remedy manifest evil.

Just as the Law Society, the state-controlled

bank and the Ministry of Finance resolutely

ignored evidence of misconduct, for the better

part of a year Thailand’s Ministry of Foreign

Affairs has ignored the Diplomatic Note

from the foreign victims’ home government

politely requesting investigation of the documented

abuses and compensation to the victims

for their losses.

On the positive side, senior Thai leaders (who

had no role in any of the abuses of power here

detailed), now have a splendid opportunity to

prove they will no longer tolerate the kinds of

behavior documented in this series. From

cases like those recounted here foreign individuals,

businesses, and official bodies (like

CalPERS mentioned in our first case study)

have drawn conclusions about the rough justice

their persons and property may receive

in Thailand. And Thai citizens may draw

their own conclusions about what needs

attention to alter the perceptions of foreigners

who might choose to sojourn in their

Kingdom.

ADVENTURES IN THAI JUSTICE PART FOUR—ALICE IN THAILAND PAGE FIVE

ADVEN_4.PDF ADVEN_4.QXD ADVEN_4.IDX October 15, 2003

[plachon]

Took some reading, but got there eventually. Mr Race deserves a medal for being one terrier, who refused to let go of the rag, despite the doberman on the other end and has still come out tail wagging. Good on yer - lesser men would have lost heart long before.

[udon]

Thanks for posting real evidence of complicity by the "hi sos".

I hope someone in Oz draws the attention of the Oz gov't to the website as the FTA draws nearer for Australians.

Scarey stuff...

[stumonster]

from here you can access the pdf files ... you can print and read them

http://www.camblab.com/nugget/nugget.htm

or ATTENTION: Internet Users in Thailand

If you are not redirected within a few seconds, or if you receive a screen message "Page cannot be displayed", "TCP_ERROR", "Timeout error" or the like, you may have been blocked. Go http://www.camblab.com/nugget/block/block_01.htm for information

the above page is probably worth reading for an insight into the censoring of the internet by thailand.

[udon]

Hi Stu, have been looking at the block/block site for a while now... essential reading. heh heh

and I have definitely been corrupted by checking out all those dirty sex sites , well 2 of them

[Crash999]

Took some reading, but got there eventually. Mr Race deserves a medal for being one terrier, who refused to let go of the rag, despite the doberman on the other end and has still come out tail wagging. Good on yer - lesser men would have lost heart long before.

Well I read through the testimony and questions and sent the guy an email.

Not sure how FTA disputes are resolved, but the connection he seems to be making is that any FTA disputes won't be handled well by the Thai government. I'm not sure this is entirely applicable as the US could simply withdraw from the agreement if Thailand was not holding its end of the bargain.

Problem with FTAs is that they get so mired down in tiny details that 90% of it will probably never be used. A true free trade agreement would mean we could all buy American-made cars without facing import tax- but of course that won't happen. Likewise there will be all sorts of 'country of origin' stipulations and required conversion processes and so on and so on.

Overall the FTA should be a good thing for exporters- but when all is said and done we'll see how beneficial it really is.

[NedKelly]

Its a very strong warning to all and something that most of us already are aware of. Social justice and equality almost non existent.

[sabaijai]

Took some reading, but got there eventually. Mr Race deserves a medal for being one terrier, who refused to let go of the rag, despite the doberman on the other end and has still come out tail wagging. Good on yer - lesser men would have lost heart long before.

Well I read through the testimony and questions and sent the guy an email.

Not sure how FTA disputes are resolved, but the connection he seems to be making is that any FTA disputes won't be handled well by the Thai government. I'm not sure this is entirely applicable as the US could simply withdraw from the agreement if Thailand was not holding its end of the bargain.

Problem with FTAs is that they get so mired down in tiny details that 90% of it will probably never be used. A true free trade agreement would mean we could all buy American-made cars without facing import tax- but of course that won't happen. Likewise there will be all sorts of 'country of origin' stipulations and required conversion processes and so on and so on.

Overall the FTA should be a good thing for exporters- but when all is said and done we'll see how beneficial it really is.

Good points, Crash. In a true free trade agreement, it wouldn't matter whether the Thais kept up their end of the agreement, as basically the Americans could sell anything they wanted here and vice versa. The fact that Race or anyone else has to worry about rule of law exposes the fact that FTAs are never really free.

I still support the FTA. I posted the Race link for its intrinsic interest.

Also worth reading is Niels Mulder's Inside Thai Society and his more recent Southeast Asian Images: Towards Civil Society?, both of which go into the whole background of this issue of the lack of rule of law in Thailand. It's not something that's going to change anytime soon, and it's not something that's unique to Thailand.

I do think it's useful for Western expats living in Thailand to be well versed in these issues. Otherwise they come and plant themselves here with the expectation that Thailand is a civil society like the one they came from, just a little poorer, etc.