The Court's Options In Its Ruling: Thaksin's Assets Case

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THAKSIN'S D-DAY

The court's options in its ruling on Feb 26

By Thanong Khanthong

The Nation

Published on February 17, 2010

BANGKOK: -- There is intense speculation on the possibilities of the Supreme Court's ruling in the Bt76-billion assets-seizure case against former prime minister Thaksin Shinawatra.

A legal expert has offered a set of different likely scenarios for February 26. It is anybody's guess what will be the final verdict, which could have far-reaching implications for Thai politics.

Here are the different scenarios:

- The court might reject the case on the grounds that the investigative process lacked justice or legal basis. The Assets Examination Committee, formed after the military coup of 2006, started the investigation process against Thaksin's alleged attempts to conceal his assets, and alleged policy corruption by him to benefit the share prices of family-held company Shin Corp.

The AEC has survived this legitimacy test when it succeeded in helping the prosecutors to lodge the case against Thaksin in the Ratchadaphisek land deal. In that case, Thaksin was found guilty of abusing his power, leading the court to sentence him to two years in prison. Thaksin has been a fugitive from justice since then, fleeing the country in August 2008 just before the Criminal Court's ruling.

- The Supreme Court could find Thaksin not guilty of assets concealment by concluding that he and his ex-wife Khunying Pojaman na Pombejra had legally transferred their stakes in Shin Corp to their children and close relatives before he entered politics. A ruling on Thaksin's alleged policy corruption to benefit Shin Corp is possible only if Thaksin is found guilty of assets concealment.

- The court might also reject this case on the grounds that the state cannot seize Thaksin's assets even though he might be found guilty of assets concealment and policy corruption. Thaksin can be sued separately on a case by case basis rather than face a total seizure of assets.

In the event that the court finds Thaksin guilty of assets concealment and abuse of power to benefit Shin Corp, there are two possible scenarios:

- The court might rule that part of his assets would be seized. In effect, the court might rule for the state to seize Bt53 billion of the Bt76 billion, while the remaining Bt22 billion must be returned to Thaksin. This amount represents the value of Thaksin's shares in Shin Corp before he served as prime minister in 2001. Shin Corp was sold to Temasek Holdings of Singapore in January 2006.

-The court might rule to seize the entire Bt76-billion assets as recommended by the public prosecutors and the AEC.

Another line of argument is that Thaksin's case is special. He was an elected public figure, who won the mandate to run the country. The public voted him into office and gave him the trust that he would serve the country honestly and with integrity. But since Thaksin had allegedly violated the public trust, he should be ruled as committing an act of treason against the state. In that case, his entire assets must be seized. But this line of argument is unprecedented.

Thai leaders in the past have also faced assets seizures. Field Marshal Sarit Thanarat and Field Marshal Thanom Kittkachorn. Maj-General Chatichai Choonhavan and his Cabinet members were also charged with corruption and assets seizure. But the Supreme Court eventually ruled in favour of Chatichai and his ministers.

+++++++++

The verdict

Possible scenarios of the Supreme Court's ruling on the Bt76 billion asset seizure case

1. Rejection of case due to investigation process findings.

- Investigation by the Assets Examination Committee against former prime minister Thaksin Shinawatra was unfair or illegal.

- Thaksin and his ex-wife Khunying Pojaman Na Pombejra had legally sold their stakes in Shin Corp to their children before he entered politics.

2. Rejection because of insufficient basis for seizure of assets.

Even though the defendant might have abused his power to benefit Shin Corp, his assets cannot be seized by the state. Rather Thaksin should be sued for alleged corruption on a case-by-case basis regarding any violations of the law.

3. Rejection because there's no evidence to suggest Thaksin benefited from monetary gains from an alleged abuse of power.

It cannot be proved that Thaksin abused his power to benefit Shin Corp.

4. Ruling for a part of the confiscated assets to be seized.

There is enough compelling evidence to believe that Thaksin deliberately concealed his assets and abused his power to benefit Shin Corp. But some Bt22 billion he earned before assuming prime minister's office could be returned while another Bt53 billion representing the capital gains during his years in the high office could be seized.

5. Ruling for all of the confiscated assets to be seized.

The whole Bt76 billion in assets would be seized because Thaksin violated the trust of the Thai public who voted him into high office. Without that high office, he would not have been in a position to abuse his power to benefit his own assets.

-- The Nation 2010-02-17

[newsfooter][/newsfooter]

[SomTumTiger]

If he had laid low, and kept his nose clean, he might have gotten some or all back. But he has basically openly declared war on so many of Thailand's revered institutions, that there is not a snowball's chance in hel_l he see's any of that money again.

Look for the "Flight of the Shiniwatra" family drama to occur this weekend, as his hired goons get ready to ramp things up.

[givenall]

If he had laid low, and kept his nose clean, he might have gotten some or all back. But he has basically openly declared war on so many of Thailand's revered institutions, that there is not a snowball's chance in hel_l he see's any of that money again.

Look for the "Flight of the Shiniwatra" family drama to occur this weekend, as his hired goons get ready to ramp things up.

TOO LATE

[RKASA]

"The AEC has survived this legitimacy test when it succeeded in helping the prosecutors to lodge the case against Thaksin"

Hardly most judges don't believe the law used even applied to the case. Viewing this as legitimacy is like putting lipstick on a pig.

Thaksin was cooked prior to the coup and that might be just his own bad karma, but the conduct of Thai law is going to come back at them. Goes around comes around. Only thing that will delay that is dictatorship.

The political effect under current status won't be near what the economic effect will be. That of the sucking sound you will hear as half of Thailand's assets head for safe harbor overseas good luck.

[junglist]

If he had laid low, and kept his nose clean, he might have gotten some or all back. But he has basically openly declared war on so many of Thailand's revered institutions, that there is not a snowball's chance in hel_l he see's any of that money again.

Look for the "Flight of the Shiniwatra" family drama to occur this weekend, as his hired goons get ready to ramp things up.

to true.

love the River Tam quote Serenity is a must see sci-fi movie.

[somluck]

The only 'crime' Thaksin ever committed was probably to be a man of vision and getting things done for thailand and most of all to awaken the hopes and dreams of the poor people.

I read this in an editorial and agree wholeheartedly

[hammered]

The only 'crime' Thaksin ever committed was probably to be a man of vision and getting things done for thailand and most of all to awaken the hopes and dreams of the poor people.

I read this in an editorial and agree wholeheartedly

You can agree with the sentiment and think he has done other more tradtional crimes. It isnt an either/or. Drug war is very hard one for any democratically minded person, liberal, socialist or even most conservatives to ignore or maybe should just say human being

[jayjayjayjay]

Actually one other better pieces from The Nation to explain the options faced by court. The outcome will be interesting, and will speak volumes for western investment future in Thailand. I can't make a judgment on who wants what verdict, but either way Thailand is not a Democracy and is unlikely to be one in a very very long time.

[Insight]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

[h90]

The only 'crime' Thaksin ever committed was probably to be a man of vision and getting things done for thailand and most of all to awaken the hopes and dreams of the poor people.

I read this in an editorial and agree wholeheartedly

And 3000 were dead when he woke up from his dream......but the pockets were full.

Please safe Thailand from more nightmares like that.

[somluck]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

That would be a good way of spinning it.

Accountability, checks and balances do exist but on a selective basis

[jayjayjayjay]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Investors have been happy to place their funds in Thailand over the last 20 plus years, but without the obvious nationalization of assets of the individual, for "violated the trust" . Thaksin is and still is a citizen of the country. If his assets are seized due to a court ruling of "violated the trust" as is detailed in the article, it does leave a scary precedent for corporate governance and the threat of "violated the trust" being used in future cases against management.

Would you personally like to be landed in court with a "violated the trust" law suit to claim you house car and business because you broke the trust of your employees...., what for, because you made a management decision to whatever......

Edited February 17, 2010 by jayjayjayjay

[Insight]

Investors have been happy to place their funds in Thailand over the last 20 plus years, but without the obvious nationalization of assets of the individual, for "violated the trust" . Thaksin is and still is a citizen of the country. If his assets are seized due to a court ruling of "violated the trust" as is detailed in the article, it does leave a scary precedent for corporate governance and the threat of "violated the trust" being used in future cases against management.

Would you personally like to be landed in court with a "violated the trust" law suit to claim you house car and business because you broke the trust of your employees...., what for, because you made a management decision to whatever......

Your defence makes no sense. How would an investor break the trust of its employees other than by not honouring their contracts? The whole objective of a business is to make usually profit, so if the employees are having their part of the deal honoured what would the upset be?

If that investor was also running the country as well as running a business (let's just imagine this somehow happened), perhaps they'd violate the trust of its citizens by giving the employees or the business preferential treatment?

If this judgement sends shockwaves through the expat investment community here, the first question on my mind would be what sort of businesses they are investing in.

[jayjayjayjay]

Investors have been happy to place their funds in Thailand over the last 20 plus years, but without the obvious nationalization of assets of the individual, for "violated the trust" . Thaksin is and still is a citizen of the country. If his assets are seized due to a court ruling of "violated the trust" as is detailed in the article, it does leave a scary precedent for corporate governance and the threat of "violated the trust" being used in future cases against management.

Would you personally like to be landed in court with a "violated the trust" law suit to claim you house car and business because you broke the trust of your employees...., what for, because you made a management decision to whatever......

Your defence makes no sense. How would an investor break the trust of its employees other than by not honouring their contracts? The whole objective of a business is to make usually profit, so if the employees are having their part of the deal honoured what would the upset be?

If that investor was also running the country as well as running a business (let's just imagine this somehow happened), perhaps they'd violate the trust of its citizens by giving the employees or the business preferential treatment?

If this judgement sends shockwaves through the expat investment community here, the first question on my mind would be what sort of businesses they are investing in.

The defense does not have to make sense, stock markets don't rise and fall with logical sense, they are emotional indicators. Investors have happily invested in Thailand with rule of law that has been followed over the last 20 years. Even with one coup detat in '91 precedents were followed as a norm. What we have with this case (and since '06 coup detat) is a very different precedent unseen in any democratic society that investors are placing their funds into in the Asian belt. If you can provide examples, do so, but don't use Marcos/Philippines as no-one is investing there. Malaysia, Singapore, Hong Kong, Japan or Taiwan. Give examples.

[scorecard]

"The AEC has survived this legitimacy test when it succeeded in helping the prosecutors to lodge the case against Thaksin"

Hardly most judges don't believe the law used even applied to the case. Viewing this as legitimacy is like putting lipstick on a pig.

Would you like to quote your source for making a bold statement like ".....most judges don't believe the law used even applided to the case....

Thaksin was cooked prior to the coup and that might be just his own bad karma, but the conduct of Thai law is going to come back at them. Goes around comes around. Only thing that will delay that is dictatorship.

[i]So are you saying that thaksin is innocent? Maybe i just dreamed about the 2,500 fellow Thai citizens murdered under his supervison. Maybe I just dreamed about his instruction to the ex/im bank to loan large amounts of Thai taxpayers funds at low interest to the Burmese thug dictators, so they could buy equipment from his family companies., etc., etc., etc [/i]

The political effect under current status won't be near what the economic effect will be. That of the sucking sound you will hear as half of Thailand's assets head for safe harbor overseas good luck.

Funny statement. There are more and more published indicators / comments about the increasing health of the Thai economy, tax receipts are way beyond forecast, and the minister just received two highly credible international awards for his well developed and balanced policies, including his foundation work towards a share the wealth society.

[scorecard]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Agree!

[jayjayjayjay]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Agree!

In a perfect world!

[h90]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Investors have been happy to place their funds in Thailand over the last 20 plus years, but without the obvious nationalization of assets of the individual, for "violated the trust" . Thaksin is and still is a citizen of the country. If his assets are seized due to a court ruling of "violated the trust" as is detailed in the article, it does leave a scary precedent for corporate governance and the threat of "violated the trust" being used in future cases against management.

Would you personally like to be landed in court with a "violated the trust" law suit to claim you house car and business because you broke the trust of your employees...., what for, because you made a management decision to whatever......

Yes international investors who also plan to be Thai premier might be scared, but luckily that won't be many.

[scorecard]

The only 'crime' Thaksin ever committed was probably to be a man of vision and getting things done for thailand and most of all to awaken the hopes and dreams of the poor people.

I read this in an editorial and agree wholeheartedly

Improving the lot of the poor is certainly admirable and it's badly needed and long overdue.

However I can never agree that thaksin 'awakened the hopes and dreams of the poor people'.

He is a con man, nothing more, he realized that he could very easily and very cheaply BUY their DREAMS and their HOPES

A con man, nothing more. He bought their dreams and he broke their hearts. And he still tries to con them with cheap emotions. A con man, nothing more.

Given time, I believe that the rural poor will eventualy realize they have been conned big time by Thaksin.

In the meantime I sincerely hope they get much better education and quickly, and therefore develop the capability / the opportunity to get themselves into a much better quality of life.

Overall broad share the wealth policies are also needed, but handouts are nothing more than both a band-aid and a con and in fact deliberately keep the poor fixed in their poor quality of life.

[jdinasia]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Investors have been happy to place their funds in Thailand over the last 20 plus years, but without the obvious nationalization of assets of the individual, for "violated the trust" . Thaksin is and still is a citizen of the country. If his assets are seized due to a court ruling of "violated the trust" as is detailed in the article, it does leave a scary precedent for corporate governance and the threat of "violated the trust" being used in future cases against management.

Would you personally like to be landed in court with a "violated the trust" law suit to claim you house car and business because you broke the trust of your employees...., what for, because you made a management decision to whatever......

Yeah ... I would be nervous too! If I was elected Prime Minister and changed the laws to benefit myself in the sale of my business to a foreign country's envestment group!

Since that is not a situation a foreign investor in Thailand is not likely to EVER face again, I guess I wouldn't be that worried after all!

[Insight]

It will be interesting to see how the SET reacts to the verdict alone. Obviously this will be difficult to gauge if there are any non-violent bombing incidents, as these are bound to affect the SET negatively.

[RKASA]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

To bad that has nothing to do with it.

[Thai at Heart]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Lest we forget that after Thaksin's AIS deal was pulled apart and analysed, shock horror and worry, there were several other significant companies in breach of the foreign investment act that were operating in Thailand.

Of course irrespective of their status, those cases were rapidly and quietly put aside to be dealt with another day. I bet there for a minute quite a few farangs sitting in the AC'd offices in Bangkok puckered up and pushed a couple of beads of sweat. But of course what is good for the goose, never was good for the gander in Thailand.

This ruling has nothing to do with even handed handling of the law and far more to do with squashing one family and their cohorts out of the political and societal fabric of Thailand. I never said that Thaksin wasn't guilty, I just would like to know exactly what he did to get this monolithic response from the authorities. The mere fact that precedent doesn't exist in Thai law allows this cookie convolution of the letter of the law that has been exploited by ALL sides for decades. If I give something to my adult son and daughter, it remains in my control? What a legal mess that becomes. But of course, no one else will ever fall foul of that one. Who wrote the bloody laws concerning disclosure of assets anyway, didn't they consider that a politician would simply give his assets to his spouse and kids?

Business has been connected to politics in Thailand FOR EVER. No political party has passed scrutiny in terms of conflicts of interest by any reasonable standard.

Making money from corruption in politics actually leading to a conviction and unprecedented sequestration of assets. Unparalleled in the history of Thailand.

[Credo]

If the prevailing attitude was that this situation would be handled in an even-handed manner, then I believe it would be good for the country; regardless of the outcome. The problem is that I don't think that attitude exists. I the perception is that it is a vendetta.

[Thaihog]

What's happened to media speculation being kept to a minimum prior to the courts ruling on the 26th.........

[jayjayjayjay]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Lest we forget that after Thaksin's AIS deal was pulled apart and analysed, shock horror and worry, there were several other significant companies in breach of the foreign investment act that were operating in Thailand.

Of course irrespective of their status, those cases were rapidly and quietly put aside to be dealt with another day. I bet there for a minute quite a few farangs sitting in the AC'd offices in Bangkok puckered up and pushed a couple of beads of sweat. But of course what is good for the goose, never was good for the gander in Thailand.

This ruling has nothing to do with even handed handling of the law and far more to do with squashing one family and their cohorts out of the political and societal fabric of Thailand. I never said that Thaksin wasn't guilty, I just would like to know exactly what he did to get this monolithic response from the authorities. The mere fact that precedent doesn't exist in Thai law allows this cookie convolution of the letter of the law that has been exploited by ALL sides for decades. If I give something to my adult son and daughter, it remains in my control? What a legal mess that becomes. But of course, no one else will ever fall foul of that one. Who wrote the bloody laws concerning disclosure of assets anyway, didn't they consider that a politician would simply give his assets to his spouse and kids?

Business has been connected to politics in Thailand FOR EVER. No political party has passed scrutiny in terms of conflicts of interest by any reasonable standard.

Making money from corruption in politics actually leading to a conviction and unprecedented sequestration of assets. Unparalleled in the history of Thailand.

Ahhh, but the one thing that Thaksin did that was unique, even for recent history of corruption, was to have Termsak pay for it. If in fact there was policy corruption which has existed since the Constitutional Monarchy began. However Thaksin and/or family did benefit financially, did not come from the Thai people. That is the great difference in how the old school and Thaksin did business with politics.

[Samuian]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Lest we forget that after Thaksin's AIS deal was pulled apart and analysed, shock horror and worry, there were several other significant companies in breach of the foreign investment act that were operating in Thailand.

Of course irrespective of their status, those cases were rapidly and quietly put aside to be dealt with another day. I bet there for a minute quite a few farangs sitting in the AC'd offices in Bangkok puckered up and pushed a couple of beads of sweat. But of course what is good for the goose, never was good for the gander in Thailand.

This ruling has nothing to do with even handed handling of the law and far more to do with squashing one family and their cohorts out of the political and societal fabric of Thailand. I never said that Thaksin wasn't guilty, I just would like to know exactly what he did to get this monolithic response from the authorities. The mere fact that precedent doesn't exist in Thai law allows this cookie convolution of the letter of the law that has been exploited by ALL sides for decades. If I give something to my adult son and daughter, it remains in my control? What a legal mess that becomes. But of course, no one else will ever fall foul of that one. Who wrote the bloody laws concerning disclosure of assets anyway, didn't they consider that a politician would simply give his assets to his spouse and kids?

Business has been connected to politics in Thailand FOR EVER. No political party has passed scrutiny in terms of conflicts of interest by any reasonable standard.

Making money from corruption in politics actually leading to a conviction and unprecedented sequestration of assets. Unparalleled in the history of Thailand.

Ahhh, but the one thing that Thaksin did that was unique, even for recent history of corruption, was to have Termsak pay for it. If in fact there was policy corruption which has existed since the Constitutional Monarchy began. However Thaksin and/or family did benefit financially, did not come from the Thai people. That is the great difference in how the old school and Thaksin did business with politics.

I challenge you to prove this statement!

The foundations of the value of this company came from the Thai people, the increased value of the shares, came from the Thai people - 5%, from 25 - to 20% decrease in TOT Mobile phone licenses, applied through/ him while he was in Office...concealment of his assets, avoiding taxes, when transferring the shares to his family members... and, and, and, and...!

How about the loss of these national assets?

[connel707]

The only 'crime' Thaksin ever committed was probably to be a man of vision and getting things done for thailand and most of all to awaken the hopes and dreams of the poor people.

I read this in an editorial and agree wholeheartedly

Suppose you would say the same about that short German chap...Adolf what was it... he was also a man of vision.... your house must be in your wifes name too....

[connel707]

I always thought investors were encouraged by level playing fields enforced by accountability using appropriate checks and balances...?

Surely a conviction would signal to investors such checks and balances actually do exist, regardless of your status?

Investors have been happy to place their funds in Thailand over the last 20 plus years, but without the obvious nationalization of assets of the individual, for "violated the trust" . Thaksin is and still is a citizen of the country. If his assets are seized due to a court ruling of "violated the trust" as is detailed in the article, it does leave a scary precedent for corporate governance and the threat of "violated the trust" being used in future cases against management.

Would you personally like to be landed in court with a "violated the trust" law suit to claim you house car and business because you broke the trust of your employees...., what for, because you made a management decision to whatever......

No-one mentions private or public companies... we are talking about a completely corrupt prime minister... who also got to power by alleged dubious means...

[britmaveric]

Great lad Mr T is let's hope the court tosses this case and gives Mr. T is well earned dosh back.