(Note: This letter is a response to Vanina Sucharitkul’s letter to President Barack Obama. During the past few weeks, her letter was widely shared among the Thai users of social media. The content of Vanina’s letter can be found here or here. The content of Chan’s letter here is a shortened version of the full version that can be accessed here.)
Picture: Vanina Sucharitkul reading her letter on a PDRC stage.
Dear Vanina Sucharitkul,
I am writing this open letter in response to your own letter to President Barack Obama, dated January 17, 2014, regarding Congressman Michael R.Turner’s purported misunderstanding of the Thai political situation. It may well be true that non-Thais may find it more challenging to fully appreciate the current crisis, not having had the chance to grasp our complex history and socio-political structures. However, this is no excuse for blatant deceit and the shameless presentation of logical fallacies as fact. With all due respect, please keep in mind that you were writing to the President of the United States, not to one of the millions whistling here in Bangkok that may be easily swayed by your meaningless rhetoric.
You, my fellow citizen, are a disgrace not only to the legal profession but to humanity’s intellectual capacity. Allow me to walk you through your own key assertions.
1. “The movement is not to rid Thailand of democracy.”
I am assuming this “movement” of yours refers to the hilariously misnamed PDRC and their brainwashed supporters. Someone may claim that the PDRC are not trying to “get rid” of democracy, but no one, including you, can claim that they are not trying to suspend it (for an as yet unspecified length of time). Where would the proposed unelected “People’s Council” draw its democratic legitimacy from? Not the (referendum-approved) constitution. Not the electorate. From the righteousness (or lack thereof) of Mr. SuthepThaugsuban and his henchmen, perhaps?
2. “The Thaksin authoritarian government, elected through vote-rigging, proved to be the most corrupt and the gravest human rights violator.”
On the “vote-rigging”, I am not so sure what exactly you are referring to. If you mean actual stuffing of ballot boxes or “lights out” ballot box switching like in decades past, you clearly have not noticed the myriad of observers from all across the political spectrum who cram polling stations making sure these shenanigans do not occur. Either that or you’re again doing what you seem to do best – lying.
On the other hand, if you mean vote-buying, then I would like to give you some bad news – it doesn’t work that way. Very few serious political observers still believe that vote-buying can win an election in Thailand. Sure, it exists in pockets, sometimes as part of vain attempts by candidates to get points and other times as simply a tradition of patronage payments during election season. Crucially, vote-buying is not unique to Thaksin-leaning parties. In fact, several MP-elects from the Democrat Party were found guilty of electoral fraud and vote-buying even in the most recent election. I am not implying that any of this is acceptable, but I am merely pointing out that vote-buying is not the reason why Thaksin-leaning parties keep getting elected. Several former Thai Rak Thai MPs who had defected to smaller parties outspent the People’s Power Party several times over but still lost resoundingly in 2007. Even senior Democrat Party leaders such as Korn Chatikavanij and Alongkorn Ponlaboot have gone on record saying that money is no longer determinative of electoral success. A lengthier analysis can be found here.
3. “Thaksin aided his wife to purchase government land at a reduced rate of 1/3 in violation of the law prohibiting political leaders from engaging in business dealings with the government. Thaksin was consequently sentenced to two years in prison but fled the country and never served his sentence.”
For lack of a better word, what you are talking about is nothing short of a complete joke. The so-called Ratchadaphisek Land “controversy” is not so much a controversy as it is a result of a disgusting witch-hunt after the 2006 coup. The case was pushed forward by the military-appointed Assets Examination Committee (Read: Anti-Thaksin Committee). This was despite prior confirmation from the central Bank of Thailand, which supervised the land sale, that the deal was conducted properly. Thaksin’s wife Potjaman Shinawatra purchased the land in question from the Financial Institutions Development Fund (FIDF) via a public auction, as allowed under the law. The purchase price was 772 million baht, which was actually higher than the Land Department’s appraisal price at the time of approximately 700 million baht.
The “reduced rate” you are suggesting is with reference to the FIDF’s own purchase price for the land of 2 billion baht in 1995 from Erawan Trust Finance and Securities. The intentionally overpriced purchase occurred during a property market boom and went through as a mechanism to effectively bail out Erawan, which was facing liquidity issues. Perhaps someone should investigate the properness of that deal, rather than trying to put the blame on Thaksin?
Again, the purchase was legal. How idiotic would Potjaman have to be to make those bids if the law prohibited spouses of political leaders from participating? To be specific, the charges against Thaksin were based on Section 100 of the National Counter Corruption Act (NCCA), which specifies that “government officials and their spouses are prohibited from entering into or having interests in contracts made with state agencies under their authorization.” However, Section 4 of the Act indicates that “persons committing malfeasance must be direct supervisors of the damaged party”, in this case, the FIDF. At the time, Bank of Thailand Governor Pridiyathorn Devakula was the direct supervisor of the FIDF, not Thaksin. Furthermore, Section 29 of the Bank of Thailand Act of 1942 specifically stated that the Prime Minister “did not have jurisdiction to oversee the FIDF” and that “those managing the fund had sole authority for policies, control, oversight, and regulations governing the agency.”
Even with such clear logical facts in their faces, the Supreme Court (which, by the way, lacks any democratic legitimacy) still had the nerve to claim that Thaksin was a “de facto” supervisor of the fund and sentence him to two years of imprisonment. One has to wonder what the point of having Section 4 of the NCCA is, if the court is to look at “de facto” supervision. Of course, this allegation of “de facto” supervision does not even hold water in this case, precisely due to Section 29 of the Bank of Thailand Act of 1942, as explained in the previous paragraph.
Following this conviction and his subsequent self-exile, Thaksin has claimed that this case was politically motivated. Given the information above, wouldn’t you agree?
4. “During his tenure as prime minister, Thaksin sold his stakes in telecoms giant Shin Crop to Temasek holding, evading taxes worth US$16.3 million.”
No taxes were evaded. The share sales to Temasek Holdings were conducted properly under Thai law and as per Revenue Department and Stock Exchange of Thailand regulations. Individuals (members of the Shinawatra and Damapong families, in this case) who conduct their transactions through the stock exchange are exempt from capital gains taxes. This was subsequently confirmed in a legal investigation conducted by the Thai Securities and Exchange Commission. It is also interesting to note that an almost identical legal structure was used in the sale of the country’s second largest operator, Total Access Communication (DTAC), to Norwegian firm Telenor, likewise tax-free but this time without any significant criticism. Again, it seems here that you are more interested in stirring up irrational nationalistic fervor and hate rather than providing a fundamentally sound account of what transpired. Rest assured; the US Embassy in Bangkok knows exactly what happened and will inform your President accordingly.
5. “Thaksin’s countless measures to benefit his telecommunications business prompted the Supreme Court to unanimously find him guilty of 4 counts of policy corruption and order [the] seizure of US$ 1.4 billion of his frozen US$ 2.3 billion fortune.”
I’m not sure which is more disturbingly amusing, these “policy corruption” allegations, or the Ratchadaphisek fiasco. To start off, “policy corruption” was simply invented by junta-supporters and their cronies after the 2006 coup because they couldn’t find a truly solid case that would be able to cripple Thaksin financially. It is a vague mixture of conflict of interest and moral accusations, all of which had no pre-coup legal basis whatsoever. Well-known social critic Bangkok Pundit tried to have a serious go at analyzing it here, but the absurdity quickly showed.
In particular, the Assets Examination Committee (AEC) drew its the authority to freeze Thaksin’s assets from citing Announcement No. 30 of the military junta. The “policy corruption” allegations against Thaksin depended almost entirely on wild extrapolations by the judiciary with regards to Thaksin’s “bad intentions,” and the usage of ex post facto, or retroactive, laws. Being the legal expert, you may wish to provide me with your own opinion on whether this should be allowed in any civilized society (except perhaps in cases of horrid crimes against humanity or genocide, such as during World War II). For reference, such laws are expressly forbidden in the United States by Article 1, Section 9, Clause 3 of the Constitution, which states: “No Bill of Attainder or ex post facto Law shall be passed.”
The facts are so obvious that even conservative newspaper The Nation described “policy corruption” as “a new, sophisticated form of official graft that works to shield the wrongdoers from prosecution due to its legality.” In essence, we must differentiate between what is illegal, and what is, for some, “undesirable.” Cases should be decided by courts of law, not courts of justice. Sure, one could argue that Thailand needed stricter laws regarding lobbying, conflicts of interest, blind management of politicians’ assets, and regulations to ensure a veil of ignorance for office holders. I for one will join you in calling for such measures to be implemented so that we can have a more transparent and accountable democracy. However, I will not join you in selectively punishing people whose actions (however unscrupulous) were legal at the time of occurrence. That would defeat the purpose of having laws altogether. We might as well have a “Council of Elders” of sorts and let them decide every case based on what they feel is just.
Now that we have gotten the legal technicalities out of the way, a natural question to ask, for our peace of mind, would be – “How did Thaksin’s telecommunications businesses actually fare during his tenure, given all the ‘countless measures’ that he allegedly used to benefit them?” The numbers speak for themselves here. As you noted, the Supreme Court chose to confiscate around US$ 1.4 billion of his fortune (the difference between the shares’ values on the day he took office and the values when they were sold to Temasek). However, the Courts failed to take into account that Shin shares gained 121% over the period, which was actually less than the benchmark Stock Exchange of Thailand (SET) index gain of 128%. Some other blue-chip companies made even larger gains, such as Siam Cement (coincidentally 30% owned by the Crown Property Bureau), which gained 717% over the same period. You do the math.
6. “In a ploy to control both the parliament and the senate, Thaksin’s current government attempted to amend the senate structure and bar appointed senators who are professionals from all sectors. Eliminating this system would result in Thaksin’s party controlling the legislative branch without any checks and balances. The Amnesty Bill or any other laws to enable Thaksin’s corruption can then easily pass. Although the Constitutional Court struck down the senate-restructuring measure, Thaksin’s government openly declared that it would defy the court’s decision.”
As non-Thai readers (or, for that matter, some Thai readers) may not be so familiar with our “unique” political system, I will give a quick overview of the Senate’s composition. The Senate, or Upper House of the National Assembly, is comprised of 150 senators. As per the current constitution, 77 are directly elected using the first-past-the-post electoral system, with one representative from each of the 76 provinces plus Bangkok. This part is similar to the US Senate, where two representatives are directly elected from each state. However, the remaining 73 senators are not elected, but are appointed exclusively by a “Senators Selection Committee,” which consists of only seven individuals.
Candidates are selected from five categories of profession: the academic sector, the public sector, the private sector, the professional sector, and “other” sectors. All of the committee members are unelected officials from independent agencies and the judiciary. As such, they have no democratic legitimacy whatsoever. Moreover, many of these officials are appointed or nominated by the Senate itself. For example, both ombudsmen and election commissioners are appointed by the King upon the advice of the Senate. This creates a cyclical and self-perpetuating power structure, whereby senators appoint the appointers of their successors (and vice versa). The set up is inherently exposed to conflicts of interest, legitimizing a ruling bureaucracy of sorts that is not subject to any right of recall and is not accountable to the public.
This undemocratic nature of the Senate’s composition was an intensely debated topic during the Constitutional Referendum in 2007. Future Democrat Prime Minister Abhisit Vejjajiva even went on record saying that he did not like this constitution precisely due to the inclusion of unelected senators, but that this could “easily be amended” at a later stage. Thaksin backers, meanwhile, campaigned unsuccessfully against the 2007 Constitution, predicting that any amendments in the future would be met with opposition. Today, they have been proven correct.
Given the backdrop as described above, it should not come as a surprise that any government even half-committed to democracy would seek to amend the Senate composition. This is not to, as you contend, “bar appointed senators who are professionals from all sectors,” but it is to bring democratic legitimacy to one of only two legislative bodies in our political system. The “appointed senators who are professionals” would still be free to participate in Senate elections in their respective provinces after the amendments are made.
Alas, the Constitutional Court “struck down” the senate-restructuring measure. This ridiculous verdict cited Section 68 of the Constitution, claiming that the efforts to change the Senate composition amounted to an attempt to “overthrow the democratic regime of government with the King as Head of State.” Perhaps the Constitutional Court judges need to be reminded that in the 1997 Constitution, which was in use for almost a decade, the entire Senate body was in fact directly elected. Correct me if I’m wrong, but during that time we were also living under a “democratic regime of government with the (same) King as Head of State.”
To make matters worse, the second paragraph of Section 68 also specifies that “In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Attorney-General to investigate its facts and submit a motion to the Constitutional Court for ordering cessation of such act…” It is crystal clear that any complaints must be submitted to the Attorney-General first, who would then investigate the facts before (if suitable) submitting a motion to the Constitutional Court. This is a good example of your favorite “checks and balances,” giving the Attorney-General the authority to screen cases pertaining to the broad-reaching Section 68 before they can be heard by the Constitutional Court. However, in this particular case the Constitutional Court decided to overstep its authority and violate the Constitution by allowing a group of people led by some appointed senators to bypass the Office of the Attorney-General and submit the motion directly. Simply put, it is not Thaksin that is threatening the checks and balances here; it is the Constitutional Court itself. Now you may start to understand why many people, not only those in the government, have openly declared their disgust at the clearly biased and improper conduct of the Court.
It is this blatant systematic policy of double standards and abuse of power solely for the benefit of the entrenched ruling elite and aristocracy that has urged Thai citizens to stand up and say, “Enough is enough.” The voters want reform. But first, undemocratic and extra-constitutional interference must be eradicated. After decades upon decades of coups and oppression, one thing is clear. Our current (semi)-democratic system has failed us. It has allowed for unelected forces to usurp power repeatedly and, on countless occasions, strip the people of their freedom and democratic rights. The citizens are calling for change. A true democracy with transparency, accountability, and most importantly, balance of power at all levels of government. We want democracy. And it is through elections that we will improve and maintain it.
Citizen of the Kingdom of Thailand
Chan Nilgianskul is a graduate of the London School of Economics and Political Science and the University of Chicago. He is currently a businessman and investor based in Thailand.