Thailand's National Counter Corruption Commission Agrees to Probe Judges in Prime Minister Thaksin's Corruption Case
by Phairath Khampha
27 April 2002
The decision to investigate the four judges who were connected in the Thai prime minister's corruption cased raised the spectre of new legal trouble for Thaksin Shinawatra. The National Counter Corruption Commission (NCCC) on April 11, 2002 said it had decided to investigate four Constitution Court judges in connection with their rulings on the asset-concealment case against Prime Minister Thaksin Shinawatra. The NCCC's move, which could renew political trouble for Thaksin, followed a formal request from Senate Speaker Manoonkrit Roopkachorn, who acted on a petition signed by some 60,000 people. The findings of the new investigation could start a new impeachment process, particularly as the probe by the National Counter Corruption Commission concluded the four Constitutional Court judges had breached the constitution when acquitting Prime Minister Thaksin Shinawatra of concealing assets while serving under a previous administration. Efforts to investigate four Constitution Court judges involved the 2001 controversial acquittal of the prime minister on the asset-concealment charges were challenged by the Parliament president, triggering major legal questions and a constitutional paradox. However, the Constitution Court did eventually rule that the National Counter Corruption Commission could investigate its four judges involved in the controversial acquittal of the prime minister.
The commission's decision to conduct an investigation was announced by NCCC chairman Opas Arunin.
Results of the investigation could kickstart an impeachment process by the Senate against the four judges, who ruled that the Constitution Court was not in a position to issue a verdict on the asset case. The four judges' rulings were controversially counted as four acquittal votes along with those of four other judges. The latter four found that "there was not enough evidence to prove that Thaksin had concealed parts of his assets while reporting his wealth to the NCCC in 1997 and later". Most Thais who examined the evidence presented to the Constitution Court agreed that Thaksin was guilty of corruption.With seven judges finding Thaksin guilty, the prime minister scraped through with the eight "acquittal" votes. Some legal experts said it should have been a guilty verdict.
The four judges in question - Kramol Thongdharmachart, Phan Chanpan, Sak Techacharn and Jumpol na Songkhla - were targeted for criticism because their argument on the court's power to try Thaksin seemed to contradict precedents set by the court itself. The signature campaign was spearheaded by former Democrat secretary-general Sanan Kachornprasart, who had been indicted by the NCCC for filing a false asset report and found guilty by the Constitution Court. He could only wonder why his transgression was found to be wrong when Thaksin's was the same and only of a much larger magnitude.
Now the NCCC would have to determine if the four judges committed malfeasance. This could be a highly complicated task, requiring interpretation of laws and the Constitution. The complexity could be compounded by the charter's empowerment of the Constitution Court as the final authority on constitutional disputes.
With the NCCC agreeing to launch an impeachment investigation, one of the most contentious points of the asset concealment would be revived. The four judges insisted during the trial that the Thaksin case was not covered by Article 295 of the Constitution, which prescribes punishment for political office holders who submit false asset reports to the NCCC. The judges cited the timings of the wrongdoings as well as of the NCCC's investigation.
Three of the four judges lodged a complaint with the Administrative Court against Manoonkrit and Opas, saying that the request for an NCCC investigation did not follow proper procedure. If the impeachment process were to gather momentum, a big question would emerge: if the four judges were impeached, how would that affect the ruling on the Thaksin case?
Probe finds four judges breached the charter
The probe by the National Counter Corruption Commission concluded four Constitutional Court judges had breached the constitution when acquitting Prime Minister Thaksin Shinawatra of concealing assets while serving under a previous administration. Kramol Thongthammachart, Pan Chantharapan, Chumpol na Songkhla and Sak Techachan controversially decided Mr Thaksin could not be charged under Article 295 of the charter because he had left his cabinet post in the government of Chavalit Yongchaiyudh on November 7, 1997.
The four judges were accused of exercising double standards and being corrupt in the prime minister's trial after they found other political appointees guilty of similar concealments around the same time as Mr Thaksin's offence. The culprits were barred from holding political posts for five years.
One of those suspended from public office was Maj-Gen Sanan Kachornprasart, former secretary-general of the Democrat party, who complained the judges had abused their authority in letting Mr Thaksin off the hook. He subsequently petitioned the counter corruption commission for the removal of the judges through the Senate. The panel said it would take the findings of the inquiry into consideration when looking into the abuse of authority.
If the NCCC decided the petition was justified, the judges would be formally notified of the charges against them, and the Senate would be asked to impeach them. The four would be suspended from their duties pending conclusion of the case.
Opas Arunin, NCCC chairman, said the agency would punish any abuse of power by the judges, but maintained the ruling on Mr Thaksin would be upheld because it was convenient to do so.
The judges fought back by requesting the Administrative Court to invalidate the NCCC investigation into their decision. They also claimed 60,000 signatures backing Maj-Gen Sanan's petition had not been properly verified, a charge vehemently denied by Senate Speaker Manoonkrit Roopkachorn. A group of Thai Rak Thai party MPs also questioned the legitimacy of the NCCC probe, arguing the verdict on Mr Thaksin could not be appealed, and therefore Maj-Gen Sanan's petition should not have been accepted.
Charter crisis looms
As a result of this new attempt to investigate the prime minister's corrupt behaviour, a constitutional crisis loomed. Efforts to investigate four Constitution Court judges involved the controversial acquittal of the prime minister the asset-concealment charges were challenged by the Parliament president, triggering major legal questions and a constitutional paradox.
Parliament President Uthai Pimchaichon, who is also speaker of the House of Representatives, asked the Constitution Court to block the investigation, which had been launched by the National Counter Corruption Commission following a request by Senate Speaker Manoonkrit Roopkachorn. Uthai had a great deal to lose if Thaksin were to be impeached.
Apart from the tough questions of whether the NCCC was empowered to investigate Constitution Court judges, and whether the court could stop such a probe, the country was threatened with parallel showdowns between key political institutions - NCCC versus the Constitution Court and the Senate versus the House of Representatives. The Administrative Court was also dragged into the fray, following a petition by three of the investigated judges.
The charter says the Constitution Court would have the final say on any constitutional dispute, but there is no mention that its judges could be immune from investigation for malfeasance. Yet since the controversy over the Thaksin acquittal was mainly on legal technicalities, and since the NCCC was also a "directly involved party" in the trial, should the agency be allowed to probe the judges?
"We are staring at a major paradox and perhaps there's no way out except to amend the Constitution," said Prachin Buri Senator Kampol Phumanee. A member of the former Constitution drafting committee, Tak Senator Panas Tassniyanont, agreed that a constitutional crisis was around the corner, as the Constitution Court was planning to rule on the legitimacy of the NCCC's investigation on April 24.
"The NCCC indicted the prime minister, and then lost the case at the Constitution Court. How could the 'loser', a party directly involved in the trial, come back to challenge the court? It doesn't make sense to me," said Panas.
Meanwhile, some argued that the judges could not be above the law, and that the NCCC probe must be accepted if the aim was to find out whether there had been irregularities behind their decisions. NCCC chairman Opas Arunin was quick to assert that the probe would involve a scrutiny of the four judges' assets and related matters.
The four judges in question - Kramol Thongdharmachart, Phan Chanpan, Sak Techacharn and Jumpol na Songkhla - volunteered not to participate in the court's deliberation on the NCCC's scope of power to avoid criticism of conflict of interest.
"We will make a very transparent decision on the matter," said court president Issara Nititanprapas.
If the court were to rule that the probe of its judges must be stopped, then the NCCC would have to follow the ruling, admitted NCCC member Krirkkiat Pipatseritham, but such a ruling, according to observers, would raise serious questions about checks and balances in the political and legal systems of Thailand. According to Panas, one solution would be to amend the charter to empower the Senate to conduct its own impeachment inquiry.
Court gives NCCC the go-ahead
Thailand's Constitution Court ruled on April 25 that the National Counter Corruption Commission could investigate its four judges involved in the controversial acquittal of the prime minister in 2001. The ruling was seen as a snub to Parliament President Uthai Pimchaichon, whose appeal against the NCCC's decision to probe the four judges threatened to cause a constitutional crisis.The court voted 7-4 to reject Uthai's appeal, paving the way for senatorial impeachment of the judges if the NCCC indicted them.
"The four votes mean I'm not the only crazy one," Uthai said. "But when the court says something, you respect it. I won't make any more moves."
The court ruled that the NCCC's move did not contradict the charter, which gives the court itself the ultimate say in constitutional disputes, and that the NCCC was only performing its duty. Uthai's appeal put two top legislative figures on a collision course, although the Senate was far from being unanimous regarding the Constitution Court's ruling on Prime Minister Thaksin Shinawatra.
All but one of the seven judges who found Thaksin guilty voted on April 25 to allow the NCCC to continue investigating their four peers. The other pro-NCCC vote came from Jun Adireksarn, who was in the acquittal camp in the historic Thaksin trial. But most Thais think this is just going to be a white-wash process and that in the end Thaksin will get awy with it scot-free. The four votes in favour of vetoing the NCCC's power came from the three judges who acquitted Thaksin on the grounds of insufficient evidence, and Ura Wang-omklang, who had found Thaksin guilty in the asset case.