Article 5, paragraph 4 stipulates that in the event that the Office of the Prime Minister or another state agency grants a concession or enters into a contract with another party to operate a free-to-air television broadcast business or subscription-based television business in which commercials are allowed, which has serious impact on the financial standing of Siam Infotainment (the precursor of iTV), the OPM, upon receiving a request from Siam Infotainment, shall compensate it for losses, which may include revision or amendment of the terms of the agreement, without delay.

Now, if we take one step back, we should ask ourselves, what did the Cabinet really approve? Fortunately, the court verdict has some background on the case. We learn that on April 4, 1995 the Cabinet approved the principles behind the concession agreement between the OPM and iTV (at that time Siam Infotainment).

In June, iTV requested the controversial point (article 5, paragraph 4) be inserted in the concession. Now, we don't know whether article 5, paragraph 4 is significantly different from the principles that the Cabinet approved or not. The Cabinet did not approve the whole concession line by line. It just approved principles in which the OPM is free to negotiate within the bounds of the principles. Wednesday's court verdict interpreted the new article as a significant change in principle. But what if it was not interpreted as such by the government at the time?

To be safe, the insertions were sent to the Office of the Attorney General for vetting. The then attorney general sent the draft to the Cabinet secretariat for consideration on June 29, 1995. The Cabinet secretariat sent the draft to the OPM permanent secretary on June 30, 1995 asking the permanent secretary to submit it through the proper channels. It was here that the activities stopped, and it was at this point that the court found fault.

It was here also that something peculiar happened. The Cabinet secretariat must have known full well that, at that time, the Cabinet could not consider any important resolutions because there was a lame-duck government. Chuan Leekpai had already dissolved parliament in May 1995, and a general election was about to take place in July, which resulted in Banharn taking office as PM.

The only two possible options at that time were:

1. Wait until the election was over, a government was formed, and a new full Cabinet could convene and consider the amendments. This must not have looked good at the time. Banharn was already touted as the next PM. And in Thai politics, a new government always puts a stop to any unfinished work of the last government and starts their own thing. So three years of effort may well have gone to waste. The coalition led by the Democrats worked hard on this, and I don't think they wanted Banharn to claim credit for launching the first independent TV station in Thailand.

2. Interpret the amendments as "not a significant change" in principle and just let it pass.

The permanent secretary of the OPM must have canvassed his minister and asked for his opinion. The minister might have also called some of his colleagues to sound out their views, and they decided then that this would not be a problem. The concession was signed a couple of days later, on July 3, 1995.

Given the political situation then, it was very bold of the government to go ahead. If they stopped it, and let Banharn take over, who knows how much longer it would have taken to get iTV up and running. After all, Banharn would have wanted a say. He might even have diluted the mandate of iTV and prevented it from becoming a genuinely independent station to begin with. Why would we go back on the initial interpretation and say now that there is a significant change in principle (note that the Supreme Administrative Court took the issue up cursorily and said it was not significant)? Perhaps the government at that time did not regard this clause as being significant at all. And we are now changing it because of our need for revenge against Thaksin.

And that is the problem. It is not the court's duty to consider whether the changes were significant or not. It is the court's duty to find out whether the government at that time thought the changes significant or not - because it was the opinion of the government at that time that counts. Article 5, paragraph 4 might not have been thought significant at the time because no one anticipated that the clause was going to be invoked.

Consider the circumstances. The Chuan government did the right thing by allowing the concession to go ahead. The public benefited by being given a taste of a free TV station that was truly independent.

But then, iTV is guilty of three things:

1. Its lack of journalistic integrity during the Thaksin years.

2. The selection of the arbitration panel was likely fixed. On the one side, you had the government led by Thaksin. On the other side, you also had Shin Corp owned by the Shinawatra family.

3. The current Temasek ownership definitely exceeds the foreign ownership limit under the Alien Business Act.

These wrongdoings by iTV should have been targeted. Instead we have a court ruling that picked on a minor technical issue to attack anything that has anything to do with Thaksin Shinawatra. It becomes clear that our appetite for revenge is going a bit too far.

Special Correspondent

The Nation

The special correspondent is a financial expert.