Legal and political precedents will be forged by Yingluck verdict

opinion August 23, 2017 01:00

By Tulsathit Taptim
The Nation

3,287 Viewed

In two days, Prayut Chan-o-cha’s controversial reign will likely be marked by a “super irony”. No matter what the Supreme Court’s division for politicians rules in the rice-scheme case, his pledge to restore peace after a bloody era in Thai politics will be severely tested. But make no mistake, this a damned-if-you-damned-if-you-don’t situation.

So much has been said about the politics surrounding the case, so here’s a brief summary. 

Some refuse to accept a court case carried out under military rule, but others insist a democratically supervised trial is impossible. The whole country, therefore, is stuck in a great dilemma. Should the Yingluck government’s scandal-plagued rice-pledging programme come under legal scrutiny? Yes. Should that scrutiny take place while the military is in power? No. Is fair scrutiny likely when politicians who launched the scheme return to power? No.

Friday’s ruling will stir more political turmoil, the magnitude of which remains to be seen and depends on several factors. So let’s look at some key legal aspects. Experts say the final verdict will hinge on how the judges handle the following points:

Was there a hidden agenda behind the rice project?

Recently, the court absolved former prime minister Somchai Wongsawat of abusing his power during a crackdown on yellow-shirt protesters by security forces, saying he had no “special motive” behind the government order. Similar reasoning may be applied in the Yingluck case, especially if the court decides that the rice scheme caused massive budgetary damage or rampant corruption.

Was the rice scheme cancellable?

A key defence argument is that the rice-price pledge had to be implemented and could not be suspended or terminated since the Pheu Thai Party was required to carry out its election promise which was later approved by Parliament. The judges will have to consider whether this claim is solid, or whether it is undermined by the many experts who warned that the rice scheme was causing massive financial damage and corruption.

Simply put, the judges will have to decide whether an election pledge is cancellable if there are signs or justified warnings of damage and/or graft.

(The supposed irrevocability of election-related policies is, understandably, meant to deter politicians from giving unrealistic pledges during their campaigns. This preventive measure, however, fails to address the issue of what a government should do if a policy triggers a flood of credible warnings, as in the case of the rice scheme.)

Were Yingluck’s responses to graft and budgetary warnings sufficient?

Her defence said they were. The prosecution said they were superficial at best. This issue is also related to the irrevocability question. The judges will need to decide whether her government was confident in its anti-graft measures and thus carried on with the rice programme, or if it was ignorant and stubborn, causing large-scale damage.

Here are the facts: Yingluck chaired the National Rice Policy Committee while she was prime minister. After the ambitious scheme was launched, the National Anti-Corruption Commission and the Office of the Auditor General sent official warnings to the government, which were then forwarded to “related agencies”. The defence also said government auditors were assigned to investigate the concerns.

Was Yingluck responsible for the “G-to-G” debacle?

The answer rests on whom the judges believe had ultimate, inescapable responsibility to sell the rice bought from farmers – Yingluck or the Commerce Ministry.

How the judges treat this issue may also affect their ruling on charges of graft during attempts to sell the rice.

(There are video clips showing Yingluck speaking about an imminent “purchase” that wasn’t to be. The accusers say she intentionally lied. The court will have to determine if that was the case, or whether she was merely given the wrong information.

The ruling on Yingluck’s role in the “G-to-G” failure will be delivered on the same day as the verdict in a separate case against ex-commerce minister Boonsong Teriyapirom – a fact that many observers find highly significant.

Boonsong has been on trial for failing to resell rice “bought” from farmers. Other analysts believe people shouldn’t read too much into the fact that Yingluck’s and Boonsong’s verdicts are both scheduled for August 25, pointing out that their cases are related and that several of the same judges have sat through both trials, so it makes sense to deliver rulings on the same days.

Can any legal precedent be applied?

No, at least not for the aforementioned issues. Instead, Friday’s ruling will set precedents. This will be the first time the court has ruled on whether a state policy delivered on an election pledge is revocable. This is also the first time a prime minister is being held accountable by prosecutors for a state policy that allegedly went horribly wrong, a policy implemented under a national committee that she chaired.

But the precedents won’t just be legal. August 25, 2017 will also be a watershed for Thai politics. 

*With additional reporting by Nation senior reporter Opas Boomlom.