Former premier Thaksin Shinawatra was sentenced to two years in jail yesterday for conflict of interest by the Supreme Court's Criminal Division for Political Office Holders.
Thaksin was found guilty of breaching Article 100 of the National Counter Corruption Act by aiding his wife Khunying Pojaman Shinawatra win a bid for a state-owned land on Ratchadaphisek Road in 2003.
The judges voted 8-1 to rule Thaksin guilty.
The nine judges handling the case said that as Thaksin, who fled to London in August, was then a prime minister and had failed to set an example of good governance and honesty, he will not be given a suspended sentence.
The verdict cannot be appealed under the law governing the court's division.
"The first defendant held the position of prime minister and had been given trust to administer the state for the highest benefit of the state and the people. But the first defendant ended up breaking the law although, as head of government, he should have set a good example, been honest and made it evident and behaved with good political ethics … so he should not be given a suspended sentence," the judges concluded.
Pojaman, meanwhile, was let off as the National Counter Corruption Act does not have any penalty clause against family members of political office holders.
The court ruled, however, that Pojaman's action, with written acknowledgement by her husband, must be considered an action of Thaksin who was then prime minister and could influence the Financial Institutions Development Fund. The court deemed unanimously that the FIDF was under the control of the state.
The judges also stated that Thaksin's influence as prime minister could have deterred two other on-line bidders from offering higher prices for the land, leading to a second bidding of Bt772 million by Pojaman, which was lower than the Bt870 million in the first open and off-line bidding process.
However, the court decided not to confiscate the land or the money used for the bidding.
Legally, this is both an interesting and confusing case.
1. Pojaman is not guilty. How can Pojaman not be guilty and Thaksin be guilty since Thaksin's guilt rests upon Pojaman's actions? Unless, see below:
2. Thailand is a community property state. From my understanding of Thai land and real property law, the spouse has to sign off on the land and deed documents when making a land transfer. Therefore, Thaksin would have been a signatory to the contract and obviously guilty of entering into a private contract with the state.
3. Even if the property wasn't bought as community property and in the form of a different juristic body, like a partnership or corporation, community property laws would still apply. In other words, if Pojaman profited from the ownership, Thaksin would profit also.
4. Why wasn't the deed voided if a political office holder was supposedly abusing his power for illegal enrichment? The court said that the contract is still valid. If the Shinawatras didn't have the legal capacity to enter into a contact with the state in this instance, wouldn't the contract be voidable?
5. Where is the abuse of power evidence? There is a huge distinction between an ethical lapse, imo, by being a signatory to a land transfer and knowingly using state power for illegal enrichment.
Thanks to Sidh over at New Mandala for referring me to this article at Thai Rath, which only adds to my confusion.
The judgment in Thai actually sounds even more stupid than it does in English.
No evidence of abuse of power. No criminal conspiracy to defraud the state.
Put simply, here is a quick summary of the court's judgment in my own words: Thaksin, you are a bad and evil man, because you were prime minister when your wife made a land deal. We will not hold your wife culpable for what she did, only you, because you are a bad and evil man who should have known better. Therefore, we sentence you to two years in jail.