OPINION: ‘Damages’ must not cause greater damage

BANGKOK (The Nation/ANN) - The public thinks that the rice-scheme scandal under Yingluck Shinawatra is the most complex “corruption” issue Thailand has ever dealt with.

There are many reasons why former prime minister Yingluck Shinawatra should not be compelled by an extrajudicial order to pay hundreds of billions of baht in rice-scheme compensation. However, Prime Minister Prayut Chan-o-cha sees no need to consult legal textbooks. He doesn’t even want to listen to what outsiders have to say about it. He prefers to just sit back and concentrate on that post-coup song about true peace that he promised to deliver.

Forcing Yingluck to pay the massive damages will guarantee the opposite outcome. Thailand can kiss the chance of genuine peace goodbye. We all know what happened after Thaksin Shinawatra had his assets seized by court order in early 2010, yet this latest case concerns an even bigger amount of money, a crucial absence of the judiciary and more widespread political strife. The “administrative order” for compensation from Yingluck will not just set the clock back, it may be a ticking time-bomb in itself.

As Yingluck’s lawyers have pointed out, ordering her to pay damages before a court verdict on the rice scheme scandal has been delivered is tantamount to belittling the judicial system. Prayut might not realise it, but the judiciary is his best friend right now. It’s the only effective anti-corruption tool available. If he ignores the courts in his anti-graft fight, Prayut must fall back on his summary powers, which will play nicely into the hands of his critics both here and overseas.

Prayut can’t be seen to have lost faith in the judiciary. Such an impression doesn’t just weaken his own position, it also renders the battle against graft a mere political game, which will undermine the country in the long run. The danger is that in the future, the little-known “Responsibility for Wrongful Acts” law will be invoked not to get rid of corruption, but to strengthen the hand of the powers-that-be against their opponents.

People are saying that the rice-scheme scandal is the most complex “corruption” issue Thailand has ever dealt with. Prayut himself said that if the administrative order were not issued, the statute of limitations would run out. Plenty of arguments are being mustered to defend the extrajudicial action, but if we look at them carefully, each emphasises the importance of the judiciary as the most effective tool in the war against corruption.

Putting Yingluck through a court trial would be difficult. Her supporters here and abroad are unlikely to accept a verdict that goes against her, and the fact that the trial would be taking place under military rule would feature strongly in their outcry. But at least she would have the opportunity to present her side of the story, which neutral observers could then measure against what her accusers have to say. Summarily asking her to pay damages threatens to erase “fairness” – or the semblance of it – from the whole process.

Prayut’s defence of the administrative order may actually be a boon to Yingluck’s lawyers. The prime minister said he was left with no choice, as the case was expiring under the “Responsibility for Wrongful Acts” law and he stood to be accused of negligence if he failed to take action in time.

Yingluck said she implemented the rice-pledging scheme in line with an election pledge. She insisted that if she had failed to carry out the programme, she would be accused of duping voters into supporting her party. That’s actually a lame legal defence, but Prayut may have helped reinforce it in his attempt to justify the controversial administrative order.

There are a couple of things to consider. While the law obliges Yingluck to make good on her election vow, it doesn’t empower her to bankrupt the government with excessive spending or to turn a blind eye to irregularities plaguing the programme. She had a duty to abide by higher laws, on budgetary responsibility and good governance.

Whether she did so should be left up to the courts to decide.

Whether Yingluck used state money irresponsibly and allowed corruption to hold sway under her nose (or was even involved in graft) should be decided by the judiciary. The judges are poised to make a decision, so why the hurry? Making her pay in the absence of a guilty verdict will only lead to awkward situations – legally, constitutionally, diplomatically and politically.

The administrative order will certainly be challenged in the Administrative Court. With Prayut’s “face” at stake, the final outcome will be intriguing. Thailand’s political trouble, however, has been dominated by “face”. On both sides of the divide, conscience has given way to the need to be proven right and to embarrass political rivals. The summary payment order will reinforce that sentiment.

Legally, it’s doubtful. Strategically, it’s unwise. Morally, it’s not right. But Prayut doesn’t need to bother with these categories. If his priority is to bring back true peace, it’s enough to know what to do.


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