Thai Democrat Verdict Puts Spotlight On Apichart's Role

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BURNING ISSUE

Verdict puts spotlight on Apichart's role

By Avudh Panananda

The Nation

The verdict was clear - Apichart Sukkhagganond, in his dual capacity as party registrar and chairman of the Election Commission, was in charge of procedures deemed unlawful in the EC's move to disband the Democrat Party.

The judgement does not pin blame on Apichart, nor hold him accountable for the bungled procedure to try the Democrats. It merely outlined how a cascade of routine actions by Apichart ended up being unlawful when put together.

Many find it hard to believe a former judge like Apichart could unwittingly mishandle such a high-profile case, resulting in its dismissal on a legal technicality without any judgement on the alleged financial fraud involving the Democrats.

The Constitution Court put the spotlight on Apichart in order to spell out judicial opinions on how and why the process to try the Democrats was botched.

The Democrat Party and its executives were accused of misusing Bt29 million of state funds earmarked by the EC for the party's electoral campaigns.

The prosecution claimed the party had committed fraud and rigged its financial statement in the fiscal year of 2004-2005 and sought to have the party disbanded, plus a five-year ban for party executives.

Based on the verdict, the alleged offence comes under Article 82 of the Political Parties Act. Under relevant provisions, the party registrar is empowered with the sole jurisdiction to find cause of guilt and seek judicial endorsement to disband the party in question.

The high court spelt out in lengthy detail about the spirit of the law in distinguishing the differing mandate between the EC and the party registrar and between the EC chairman and the party registrar.

For cases involving alleged financial fraud, a judicial review can commence only after the party registrar has established cause of guilt and subsequently petitioned for punishment.

The high court said Apichart, in his capacity as the party registrar, was alerted to the alleged fraud by the Department of Special Investigation in March 2009. He, in turn, reported the matter to the EC, which resolved to form an investigative panel.

Two investigations, one appointed by the EC and another tasked by the party registrar, were completed within the year.

Following a review of the party registrar, Apichart ruled to drop the case on the grounds they found no cause to suspect foul play. He specifically stated he had authorised the Democrats to reallocate the funds, hence there was no misuse of the money.

He then reported his decision for the EC review on December 17, 2009. The EC then formed a majority decision to seek a judicial review on the matter.

But the majority vote on that day was triggered by two-tiered charges linked to one another - one involving the Bt29 million in state funds and another involving Bt258 million allegedly "laundered" by the party.

The high court ruled that the case involving the Bt29 million came under the purview of the party registrar, while the other case came under the jurisdiction of the EC.

In an abrupt about-turn following a new round of probes based on the December 17 decision, Apichart, as party registrar, recommended the EC chairman do an urgent review of the new probe report suggesting possible foul play under Article 94 of the Political Parties Act.

Article 94 describes offences related to a party allegedly linked to or involved in money laundering.

The EC convened its meeting on April 12 and formed a unanimous decision to seek the disbandment of the Democrat Party.

The high court ruled that Apichart's vote on April 12 was done in his capacity as the EC chairman and had no bearing on his December 17, 2009 ruling as party registrar to acquit the Democrats.

Under Apichart's earlier and just ruling, the party registrar had already exonerated the Democrat Party, hence there were no grounds to seek EC backing or judicial approval.

Furthermore, the EC decision dated April 12 was an internal affair within an independent organisation and not applicable to the fraud case on alleged misuse of funds.

The high court went on to state that should the party registrar deem it necessary to petition for a judicial review on the fraud case, he was obligated to do so within a 15-day deadline from December 17,2009. But the petition was lodged in April, long after the deadline expired.

The verdict said steps leading to the petition to disband the party were unlawful. Apichart, as the party registrar, had ruled to acquit the Democrats and the EC chairman had no mandate to overrule the party registrar even though the two offices were held by the same individual.

-- The Nation 2010-11-30