sabaijai Posted June 27, 2004 Share Posted June 27, 2004 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 Link to comment Share on other sites More sharing options...
GuestHouse Posted June 27, 2004 Share Posted June 27, 2004 I've kept a copy of this for when it gets removed from Thaivisa Link to comment Share on other sites More sharing options...
george Posted June 27, 2004 Share Posted June 27, 2004 Loved to read this, I wouldn't be removing it. Link to comment Share on other sites More sharing options...
Axel Posted June 27, 2004 Share Posted June 27, 2004 Loved to read this, I wouldn't be removed. Thanks George This is Thai Visa, not some Mickey Mouse company. Link to comment Share on other sites More sharing options...
stumonster Posted June 27, 2004 Share Posted June 27, 2004 [Extract: Verbatim oral testimony of Jeffrey Race] http://www.camblab.com/nugget/verb_01.htm Link to comment Share on other sites More sharing options...
dr_Pat_Pong Posted June 27, 2004 Share Posted June 27, 2004 This does not look good for any positive outcome in the FTA agreement negotiations between the USA and Thailand. Link to comment Share on other sites More sharing options...
OldAsiaHand Posted June 28, 2004 Share Posted June 28, 2004 It doesn't look very good for the FCCT either, does it? Link to comment Share on other sites More sharing options...
Dutchy2 Posted June 28, 2004 Share Posted June 28, 2004 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 Link to comment Share on other sites More sharing options...
fatter than harry Posted June 28, 2004 Share Posted June 28, 2004 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 Link to comment Share on other sites More sharing options...
Dutchy2 Posted June 28, 2004 Share Posted June 28, 2004 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 ------------------------------------------------------------------------------------------------ Link to comment Share on other sites More sharing options...
fatter than harry Posted June 28, 2004 Share Posted June 28, 2004 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 Link to comment Share on other sites More sharing options...
Dutchy2 Posted June 28, 2004 Share Posted June 28, 2004 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 Link to comment Share on other sites More sharing options...
Dutchy2 Posted June 28, 2004 Share Posted June 28, 2004 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 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. 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 Link to comment Share on other sites More sharing options...
Dutchy2 Posted June 28, 2004 Share Posted June 28, 2004 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 Link to comment Share on other sites More sharing options...
Dutchy2 Posted June 28, 2004 Share Posted June 28, 2004 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 Link to comment Share on other sites More sharing options...
plachon Posted June 28, 2004 Share Posted June 28, 2004 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. Link to comment Share on other sites More sharing options...
udon Posted June 28, 2004 Share Posted June 28, 2004 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... Link to comment Share on other sites More sharing options...
stumonster Posted June 29, 2004 Share Posted June 29, 2004 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. Link to comment Share on other sites More sharing options...
udon Posted June 29, 2004 Share Posted June 29, 2004 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 Link to comment Share on other sites More sharing options...
Crash999 Posted July 1, 2004 Share Posted July 1, 2004 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. Link to comment Share on other sites More sharing options...
NedKelly Posted July 3, 2004 Share Posted July 3, 2004 Its a very strong warning to all and something that most of us already are aware of. Social justice and equality almost non existent. Link to comment Share on other sites More sharing options...
sabaijai Posted July 3, 2004 Author Share Posted July 3, 2004 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. Link to comment Share on other sites More sharing options...
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