As state agencies weigh corruption charges against former prime minister Yingluck Shinawatra over the rice-pledging scheme, legal experts are questioning the legality of an impeachment.
'TOP OF THE PYRAMID': Pichit Chuenban, a legal adviser to Ms Yingluck, believes the case is politically motivated and there is no evidence to implicate the former premier in corruption. (Photo by Nanchanok Wongsamuth)
The military-appointed National Legislative Assembly has yet to decide if it will proceed with the impeachment move against Ms Yingluck, who won office in 2011.
Ms Yingluck, who was ousted in the May 22 coup, is accused of negligence for failing to stop corruption and losses in the scheme when she was premier, and is now facing two separate cases pursued by the National Anti-Corruption Commission.
Under Thai law, the impeachment of a politician comes with strings attached: a five-year ban from politics.
In principal, a politician is required to hold a position on the day of the impeachment. Any attempt to proceed with impeachment under other circumstances would, critics say, be a breach of the constitution, and legal experts are not aware of any cases worldwide of retroactive impeachment.
“It’s quite clear that [the NLA’s] acts serve only one purpose: to ban her from politics,” said a legal expert, who spoke on the condition of anonymity.
He claimed the NLA’s acts are an intentional breach of the constitution, and may have political and legal consequences. Like Ms Yingluck, those making the accusations may themselves be impeached and later banned from politics. In terms of the law, they would be charged with malfeasance in office, which would be in violation of Section 157 of the Criminal Code.
If accused of wrongdoing, members of the NLA, in its capacity as the acting Senate, would be investigated by the NACC. The NACC would then have to submit a case to the Office of the Attorney-General, which would in turn take the case to the Supreme Court’s Criminal Division for Holders of Political Positions.
But in both cases, actions are unlikely to be pursued, as “it is quite clear that some are taking sides”, the legal expert said. “Right now, it’s a battle between the elected and unelected.”
Also at issue is whether the NLA even has the authority to impeach holders of political positions.
Although the 2014 provisional constitution stipulates the NLA serves as the parliament, it does not grant impeachment power to the NLA, the legal expert said.
But earlier this month the NLA accepted an impeachment motion against former Senate speaker Nikom Wairatpanij and former House speaker Somsak Kiatsuranon, who have both left office. Those cases, filed by the NACC, relate to their involvement in an attempted amendment of the 2007 charter to make the Senate fully elected. The amendment was struck down by the Constitutional Court.
Harvard-educated lawyer Verapat Pariyawong said the NLA’s decision that it has power to impeach politicians retroactively is both illogical and dangerous, as there is no sound legal grounds for such a move.
Worse, retroactive impeachment would open the door to an unending cycle of payback politics where rival politicians use it as a threat to gain political leverage, even after someone has already left office, he said.
“The outcome of impeachment will indicate where the NCPO stands between the Thaksin camp and the other anti-Thaksin camps,” said Mr Verapat, who left the country following the coup before being summoned by the junta.
“The various camps will engage in bargaining and the NCPO will face pressure and expectations from various sides. The worst part is the rule of law is not likely going to be part of those discussions.
“The least terrible way to proceed is for the NCPO regime to accept the fundamental logic: impeachment cannot be retroactive.”
CORRUPTION ON ALL LEVELS
Rice subsidies were introduced 32 years ago and have been continued by successive governments in various forms, but none was as popular with farmers as the scheme introduced by Ms Yingluck when she came into office in 2011.
The first time rice was purchased at above market prices was during Thaksin Shinawatra’s government in 2003, but critics say Ms Yingluck’s rice subsidies caused the heaviest damage, as it set pledging prices at 40-50% above market prices, or 15,000 baht per tonne.
The now-defunct rice scheme emerged as the country’s largest rice intervention programme, with 985 billion baht spent to buy 54.4 million tonnes of grain.
The Finance Ministry on Thursday said Thailand faced a total loss of 682 billion baht from implementing rice subsidy schemes over the past 10 years, of which 518 billion occurred under the Yingluck government.
In its latest study on corruption in Ms Yingluck’s rice scheme, the Thailand Development Research Institute estimated the financial loss at 660 billion baht, assuming a price of 7,500-8,000 baht a tonne for the 17.45 million tonnes of rice now sitting in warehouses.
The TDRI study estimated that fraud in the scheme amounted to 94-109 billion baht, and said forms of corruption used included fake government-to-government rice sales, sales to cronies who offered to buy rice at a low price, and influential brokers who used their political connections to buy low-quality rice from government stockpiles to deliver back to warehouses later.
A nationwide rice audit led by ML Panadda Diskul, permanent secretary for the Prime Minister’s Office, found only 10% of the rice in state stocks was of good quality.
THE CHARGES
The NACC has pursued two separate cases against Ms Yingluck over the rice scheme.
One case, which is now with the NLA, involves impeachment proceedings; the other seeks to indict her in the Supreme Court’s Criminal Division for Holders of Political Positions.
An impeachment would result in a five-year ban from politics, while a criminal lawsuit could result in a maximum 10-year jail term.
The NACC said her negligence was in violation of Section 157 of the Criminal Code and Section 123/1 of the National Anti-Corruption Act.
The NACC said they had formally cautioned Ms Yingluck twice, in 2011 and 2012, over corruption in the rice scheme and recommended that she take action against it, but she insisted on going ahead with the project.
If the NLA decides to launch an impeachment bid against her, proceedings will take no more than 45 days.
An impeachment requires backing from at least three-fifths of NLA members — or 132 out of 220 members.
The Office of the Attorney-General, the principal agency responsible for criminal prosecution and the provision of legal advice to state agencies, has yet to determine whether there are grounds to pursue a criminal case against Ms Yingluck, and has previously refused to accept an NACC recommendation to indict Ms Yingluck in the Supreme Court.
The NACC cannot file the charge without the endorsement of prosecutors, but the NACC also did not comply with the prosecutors’ requests for more evidence, as it believed it had enough evidence and witnesses to prosecute.
LACK OF EVIDENCE
Pichit Chuenban, a legal adviser to Ms Yingluck and a member of the Pheu Thai Party’s legal team, said the team has only been able to gain access to 49 pages of evidence, which the NACC submitted on March 11.
The documents include NACC recommendations, the cover of a TDRI report, as well as documents provided by former Democrat Party MP Warong Dechgitvigrom, who “blew the whistle” on the scheme.
But Mr Pichit maintained that those 10 documents do not contain sufficient evidence to implicate Ms Yingluck. The NLA on Wednesday agreed to postpone the impeachment deliberation until Nov 28 to allow Ms Yingluck or a representative time to study the case files more thoroughly. On the same day, she received permission to view an additional 3,870 pages of evidence submitted by the NACC. It is expected that Ms Yingluck or a representative will have to make a statement to the NLA on Nov 28.
Mr Pichit argued it had not yet been proven that the alleged corruption reached the extent that the whole project needed to be withdrawn, and so far no legal action has been taken against anyone in the private sector or any government official.
“We are not denying that there are problems with mega projects, but they should be tackled where they are found. The NACC is attacking the top of the pyramid,” Mr Pichit told Spectrum. “It’s like termites eating some parts of the house, but concluding that the whole house needs to be destroyed.”
He said there is evidence that Ms Yingluck did not neglect her duties, as she responded to the NACC’s warnings by setting up a committee chaired by former deputy prime minister Chalerm Yubamrung to investigate the allegations.
Ms Yingluck had never received any reports from the National Rice Policy Committee, which she chaired while prime minister, that indicated the scheme caused damage to such an extent that it had to be suspended, Mr Pichit said.
Mr Pichit, who has represented four prime ministers since Thaksin came into office, said the accusations against Ms Yingluck were purely political. He argued the process to implicate her was rushed from the start, and key witnesses removed.
He said it was “a coincidence” that the NACC’s decision to impeach Ms Yingluck over the rice-pledging scheme came a day after she was disqualified from the premiership on May 7 by the Constitutional Court. She was accused of abuse of power and conflict of interest in the transfer of Thawil Pliensri from the position of National Security Council chief to the inactive position of prime ministerial adviser in 2011.
THE CONTRADICTIONS
TDRI distinguished fellow Nipon Poapongsakorn, who headed the study used by the NACC as evidence against Ms Yingluck, was quick to point out that the report examined alleged corrupt practices from 2005-06 when the scheme was under Thaksin Shinawatra’s government. The report details the “corrupt methods” used under the rice-pledging scheme, but makes no mention of the Yingluck administration.
The TDRI has been accused of providing the bullets to the NACC in its attack on Ms Yingluck. But Mr Nipon said while they conducted the initial study, the TDRI played no direct part in the NACC investigation.
However, the TDRI did release a study earlier this month that alleged there was evidence linking high-ranking officials as well as estimates of the amount of corruption during the Yingluck government. It is not yet known whether the new report will be included in the NACC’s latest case files, as all 3,870 documents were stamped “secret” and were not allowed to be copied, according to lawyers working on the case. The lawyers granted access to the files on Wednesday had not yet viewed all the documents when Spectrum went to print.
The Abhisit Vejjajiva administration’s rice price insurance scheme, which was scrapped by the Yingluck government, was based on a slightly modified version of the TDRI’s. At that time, Mr Nipon was the TDRI president and sat on the National Rice Policy Committee. He was removed by the Yingluck administration, but reinstated to the renamed committee by the current military-led government.
“There are many measures to help farmers, but Mr Nipon is furiously accusing the rice-pledging scheme of being a demon that should be eradicated from the country,” said Mr Pichit, adding that the TDRI ignored the scheme’s benefits, such as the expansion of consumption. “In the real world, farmers don’t have any bargaining power, and the scheme allocates a proportion of the profit from millers and traders to farmers.”
He said the Yingluck administration intended to run the scheme for five years, and then switch to an agricultural zoning policy.
The Democrat Party spent around 80 billion baht for their two-year rice price guarantee scheme, according to the TDRI. The insured price for the first year was 10,000 baht per tonne, and was raised to 11,000 baht per tonne in the second year.
Although the scheme had its problems, including fake farmer registration and some money going into the hands of land owners rather than tenants, there were no allegations of large-scale corruption.
Viroj NaRanong, TDRI’s research director for health economics and agriculture, said the main purpose of the scheme was to eliminate the corruption that occurred during price intervention schemes in the past.
“Past projects would involve massive amounts of corruption, mainly in the rice selling stage, which was a problem in every government,” Mr Viroj said. “But in this scheme, there was no room for government officials to take advantage of corruption.”
Because the government was not actually purchasing rice, once registration was approved and the amount of the deficiency payment was determined, the Bank for Agriculture and Agricultural Cooperatives would transfer the money directly to farmers’ bank accounts.
CORRUPTION AS A JOKE
In the TDRI’s latest study, headed by Mr Nipon, 543 farmers in six provinces were interviewed about Ms Yingluck’s rice-pledging scheme. Of them, 396 had participated in the scheme, each owning an average of 33.27 rai of land, compared to 16.21 rai for non-participants. More than half the interviewees were aware of corruption at the farmers’ level, while 20% said they were aware of corruption at a government level.
Still, around 70% of the interviewees wanted the government to continue the project, according to the study.
Prajak Kongkirati, a lecturer at Thammasat University’s political science faculty, said farmers have limited options, and rice pledging answers their demands in the same way that middle class parents send their children to prestigious schools that require tea money.
“Regardless of the political party, farmers know that [politicians] are here for self-benefit, so they choose policies that can solve their day-to-day problems,” he said. “They know they aren’t able to control that corruption, so everyone just adapts to the system.”
Prime Minister Prayut Chan-o-cha has made tackling corruption a national priority, but Mr Prajak questioned whether anyone really wanted to change the system.
He cautioned that anti-corruption efforts should not be politicised and used as a tool for a certain group, while leaving others untouched.
“Fighting corruption in Thailand has not been taken seriously in the sense that one eye is being blindfolded,” Mr Prajak said. “All elites without public scrutiny are corrupt, not only elected politicians.”
He added that Indonesia has been successful in tackling corruption because all stakeholders related to public power, such as prosecutors, policemen, bureaucrats and even people in independent organisations themselves, were targeted. Corruption allegations against Thaksin and his family were also the centre of protest campaigns which culminated in the military coups of 2006 and 2014. But replacing democracy with a non-democratic military regime overlooks the true issue, Mr Prajak said.
“The problem is not democracy as a regime but the abuse of power, and therefore there is a need to increase the accountability of the government,” he said.
“The formula of corruption is monopoly without accountability, and by having an authoritarian regime, there is no accountability.” n