Thai Democrats Might Get Away On Technicalities

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ASK THE EDITOR

Democrats might get away on technicalities

By Somroutai Sapsomboon

The Nation

It's seemingly an unbelievable theory, but stranger things have happened in Thai politics. Therefore, we shouldn't be surprised if the Democrats are hoping that their executives will be able to avoid the five-year ban from politics even if the party is found guilty of misusing state subsidy.

Could that really happen? A hair-splitting analysis of two key laws shows that this unlikely scenario is not entirely impossible. The ruling party is being tried under the Political Party Act, as opposed to the Election Law, which was used to overthrow the People Power Party (PPP) in 2008 over charges of electoral fraud.

What's the difference? The PPP faced dissolution because its executives were accused of being involved in electoral fraud. Normally, electoral fraud would not get a party dissolved unless executives are found guilty of being involved in it too. In other words, if high-level officials were not found involved in fraud, the law would only result in MPs losing their seats or facing other penalties. In the case of the PPP, though, the fate of the party and its executives was inseparably linked - the party would not have been dissolved if the executives had not been found involved.

This time, the Democrat Party faces dissolution because it (note that "it" doesn't necessarily mean executives) is accused of misusing state subsidy. It's a crime punishable by dissolution, but the executives don't automatically get banned. If the party is found "guilty" and dissolved, then the judges will have to make another decision - whether or not to ban the executives.

One can argue that a party can't commit a crime by itself, but the Political Party Act seems to provide an escape route for the executives. An article says that once a party is dissolved, the court will then have to judge whether the party executives are responsible for the crime that led to the dissolution, and only after they are held responsible can they be banned from politics.

This seemingly narrow loophole can be utilised by the Democrats, whose existing executives were elevated to the party's board after the alleged crime had taken place. Although Prime Minister Abhisit Vejjajiva's signature was on the documents concerning the allegedly misused funds, the party's lawyers have been trying to point out that he was not in a position of power when the money was being misappropriated.

The Democrats are also relying on another technicality - the alleged misuse of state funds took place under the old Political Party Act, which did not prescribe party dissolution as punishment. However, what looks like a sound argument - new laws shouldn't be applied against old crimes - it will be hit by charges of double standards, and the logic behind Thai Rak Thai's dissolution will certainly come under critics' microscope.

As the judgement day draws near, the Democrats are studying all possibilities, just as the pro-Thaksin Shinawatra camp did earlier. Apart from preparing to refute prosecutors' evidence and discredit the other side's witnesses, the Democrats are said to be seriously studying legal technicalities. Their most conspicuous move concerns Suthep Thaugsuban, who has been asked to resign his Cabinet post so he can run in a Surat Thani by-election, indicating that the party has not ruled out a "technical ruling" that may spare its secretary-general.

While Suthep may not be that popular - Finance Minister Korn Chatikavanij is way ahead of him when it comes to whom Bangkokians prefer as new prime minister - he is considered "the man" to go to in times of trouble. The decision to field him in the by-election suggests that this quality of his matters the most for the time being.

-- The Nation 2010-10-01

[asiawatcher]

With elections looming it is unlikely the 'system' will want to create more upheaval and political turmoil in the eyes of the world. Most likely the situation will be swept under the carpet or stalled until dissolution which in this case, would negate any action as the party would not be in existence to ban.

Similarly in my previous comment on this matter there is 'plausible denial' and that would hold up in any court of law in the West with the circumstances as are known already so the case is at best, weak. The Judges in this instance, if dismissing the case, will be seen to be favouring the Dems thus will inflame the opposition and could cause problems again for Bangkok. On the other hand if the matter can be stalled until dissolution, then the problem simply goes away. Thai-style means they will most likely stall asking for "further and better" particulars as well as technical hold ups, an occasional press release stating new evidence then "poof' just like magic, we will never hear any more.

The masters of spin. LOL.

[whybother]

With elections looming it is unlikely the 'system' will want to create more upheaval and political turmoil in the eyes of the world. Most likely the situation will be swept under the carpet or stalled until dissolution which in this case, would negate any action as the party would not be in existence to ban.

Similarly in my previous comment on this matter there is 'plausible denial' and that would hold up in any court of law in the West with the circumstances as are known already so the case is at best, weak. The Judges in this instance, if dismissing the case, will be seen to be favouring the Dems thus will inflame the opposition and could cause problems again for Bangkok. On the other hand if the matter can be stalled until dissolution, then the problem simply goes away. Thai-style means they will most likely stall asking for "further and better" particulars as well as technical hold ups, an occasional press release stating new evidence then "poof' just like magic, we will never hear any more.

The masters of spin. LOL.

How does dissolution affect the ability to ban the party? Dissolution means they are not in government, but the party still exists.

The TRT was still banned after dissolving parliament for the 2006 election, after the 2006 election didn't get a result AND after a coup. So not being in government made no difference to them being banned.

I agree with your other points. It's a weak case, but the reds will expect the same punishment, regardless of whether the Democrat executives actually broke the law or not.

[SomTumTiger]

Dems are safe - they are the only semi credible party in existence.

[mca]

^ Which is rather a depressing scenario

[craigt3365]

Unless an executive of the party was found with direct involvement in fraud, it would be very hard to ban them. The party? Not so hard to ban. But they would just change names and move on...just like TRT, PPP, etc.

[Siripon]

Korn and Suthep have quietly formed a new party in case of dissolution but it's not certain all the Democrats would follow them there.

[animatic]

With elections looming it is unlikely the 'system' will want to create more upheaval and political turmoil in the eyes of the world. Most likely the situation will be swept under the carpet or stalled until dissolution which in this case, would negate any action as the party would not be in existence to ban.

Similarly in my previous comment on this matter there is 'plausible denial' and that would hold up in any court of law in the West with the circumstances as are known already so the case is at best, weak. The Judges in this instance, if dismissing the case, will be seen to be favouring the Dems thus will inflame the opposition and could cause problems again for Bangkok. On the other hand if the matter can be stalled until dissolution, then the problem simply goes away. Thai-style means they will most likely stall asking for "further and better" particulars as well as technical hold ups, an occasional press release stating new evidence then "poof' just like magic, we will never hear any more.

The masters of spin. LOL.

How does dissolution affect the ability to ban the party? Dissolution means they are not in government, but the party still exists.

The TRT was still banned after dissolving parliament for the 2006 election, after the 2006 election didn't get a result AND after a coup. So not being in government made no difference to them being banned.

I agree with your other points. It's a weak case, but the reds will expect the same punishment, regardless of whether the Democrat executives actually broke the law or not.

I don't agree with your semantics.

Dissolving parliament is not the same as dissolving a party from existence.

I think you are confusing those two points.

Dissolving parliament is ONLY about parliament sitting, and means new election coming.

Dissolving a minor party may not entail a parliament dissolving or government falling,

just a change in ratios.

OK a Ban is for the individual PEOPLE, not the party itself.

In TRT case the executives were banned for complicity in vote fraud,

and THAT caused the party to be dissolved.

In either case; a ban is possible for the people involved,

the mechanism for implementing it is different for EC or Pol Party acts

A party dissolution means the PARTY no longer exists.

No party, then the party can't form a government.

Even if all the MP's are still holding their seats,

they have no party vehicle to organize around.

But another party can, if not then the parliament falls.

Edited October 1, 2010 by animatic

[LomSak27]

Come on did anyone here really think they were going to dissolve the Dems? or put them in the basement for 5 years? twaddle.

[OzMick]

To sum up, as I see it:

The current Dem executives were not involved, so should not face any penalty.

The Dem Party can be found guilty, but cannot be dissolved as this penalty did not apply at the time of the offense.

This is a problem because agitators will cry "double standards" and people to stupid to understand the principle will believe them.

If the penalty is applied to appease the hoi polloi, against normal law and logic, it won't matter as a standby party has been formed and current Dem members can join the New Dems.

[animatic]

Theoretically you can't try a group for a crime that wasn't a crime at the time it was committed. You also theoretically can't impose a penalty that didn't exist at the time of the infraction of law.

TRT and PPP were both tried for things that were law AT THE TIME THEY DID THEM. And the punishment was on the books at that time also.

So not a double standard, if the Dems are held to that same standard.

And it would be hardly possible to make the PTP reds any more angry

or irrational than they are already. So not really a useful point.

Edited October 1, 2010 by animatic

[whybother]

With elections looming it is unlikely the 'system' will want to create more upheaval and political turmoil in the eyes of the world. Most likely the situation will be swept under the carpet or stalled until dissolution which in this case, would negate any action as the party would not be in existence to ban.

Similarly in my previous comment on this matter there is 'plausible denial' and that would hold up in any court of law in the West with the circumstances as are known already so the case is at best, weak. The Judges in this instance, if dismissing the case, will be seen to be favouring the Dems thus will inflame the opposition and could cause problems again for Bangkok. On the other hand if the matter can be stalled until dissolution, then the problem simply goes away. Thai-style means they will most likely stall asking for "further and better" particulars as well as technical hold ups, an occasional press release stating new evidence then "poof' just like magic, we will never hear any more.

The masters of spin. LOL.

How does dissolution affect the ability to ban the party? Dissolution means they are not in government, but the party still exists.

The TRT was still banned after dissolving parliament for the 2006 election, after the 2006 election didn't get a result AND after a coup. So not being in government made no difference to them being banned.

I agree with your other points. It's a weak case, but the reds will expect the same punishment, regardless of whether the Democrat executives actually broke the law or not.

I don't agree with your semantics.

Dissolving parliament is not the same as dissolving a party from existence.

I think you are confusing those two points.

Dissolving parliament is ONLY about parliament sitting, and means new election coming.

Dissolving a minor party may not entail a parliament dissolving or government falling,

just a change in ratios.

OK a Ban is for the individual PEOPLE, not the party itself.

In TRT case the executives were banned for complicity in vote fraud,

and THAT caused the party to be dissolved.

In either case; a ban is possible for the people involved,

the mechanism for implementing it is different for EC or Pol Party acts

A party dissolution means the PARTY no longer exists.

No party, then the party can't form a government.

Even if all the MP's are still holding their seats,

they have no party vehicle to organize around.

But another party can, if not then the parliament falls.

Actually, I think we are in agreement.

Dissolution of parliament -> like before an election is held.

Dissolution of a party -> the party is disbanded no longer exists.

My point to 'asiawatcher' was, how does dissolution of parliament affect the ability of the courts to disband the party?

[whybother]

Theoretically you can't try a group for a crime that wasn't a crime at the time it was committed. You also theoretically can't impose a penalty that didn't exist at the time of the infraction of law.

TRT and PPP were both tried for things that were law AT THE TIME THEY DID THEM. And the punishment was on the books at that time also.

So not a double standard, if the Dems are held to that same standard.

And it would be hardly possible to make the PTP reds any more angry

or irrational than they are already. So not really a useful point.

Animatic ... get with the program.

As far as the reds are concerned, it doesn't matter what the Democrats did - They exist, therefore they should be disbanded.

Edited October 1, 2010 by whybother

[Robby nz]

Could the fact that "New" evidence was produced at the last second mean that someone on the anti govt side didnt think their case was strong enough?

Whybother is correct of course, the Dems are guilty in the eyes of the reds whether its true or not.

[chainarong]

Technically they could be right.

[animatic]

Theoretically you can't try a group for a crime that wasn't a crime at the time it was committed. You also theoretically can't impose a penalty that didn't exist at the time of the infraction of law.

TRT and PPP were both tried for things that were law AT THE TIME THEY DID THEM. And the punishment was on the books at that time also.

So not a double standard, if the Dems are held to that same standard.

And it would be hardly possible to make the PTP reds any more angry

or irrational than they are already. So not really a useful point.

Animatic ... get with the program.

As far as the reds are concerned, it doesn't matter what the Democrats did - They exist, therefore they should be disbanded.

Like I said the Reds can't be more pissed off,

so there is little reason to worry if there is another reason.

You did note the word 'irrational' didn't you?