My prediction that the Office of the Attorney-General (OAG) would not press murder charges against former prime minister Abhisit Vejjajiva and former deputy prime minister Suthep Thaugsuban, as recommended by the Department of Special Investigation (DSI), was clearly wrong.
I must admit that I was wrong about both the public prosecuters and about the new attorney-general, Athapol Yaisawang.
As a student of the old law school, my prediction was based on the very basics of the Thai Criminal Code. These relate to the legal accountability of the person who committed a crime and the person who ordered or hired that person to commit a crime. The law says that the employer is regarded as a principal in the crime, just like the perpetrator, and held equally accountable. If the perpetrator is charged with murder, the employer also faces a similar charge; if the perpetrator is not charged, nor is the employer.
The murder charges which were brought against Mr Abhisit and Mr Suthep by the Department of Special Investigation, and then by the OAG, simply do not follow this basic legal principle. All army soldiers who were involved in the operations to reclaim the areas seized by red-shirt protesters during the April-May protest in 2010, from the very top down to the bottom, were spared the hook by the DSI.
Athapol Yaisawang, new attorney-general (Bangkok Post file photo)
Only Mr Abhisit and Mr Suthep were selectively charged by the DSI for ordering the security operations and for allowing the troops to use the live ammunition that caused death and injury to several protesters -- under articles 59, 80, 83, 84 and 288 of the Criminal Code.
Strangely, the DSI did not charge the duo with abuse of authority under article 157 of the Criminal Code, which is the standard charge brought against an official exercising authority.
This omission, by accident or by design, is a clear indication that the DSI believes that both Mr Abhisit and Mr Suthep ordered the crackdown on the protesters in their individual capacity – and not in their capacity as the prime minister and deputy prime minister.
How could that be, that two ordinary individuals without any political positions could order troops to come out and deal with the protesters? How could the foot soldiers and their commanders take orders from two ordinary people? That is ridiculous!
Chuchart Srisaeng, a retired chief judge of the Supreme Court, posted a message on his Facebook page on Monday challenging the DSI’s authority to investigate the case against Mr Abhisit and Mr Suthep from the start. He maintained that the two men might have broken the anti-corruption law for misusing their political positions, but that should be investigated by the NACC and not by the DSI.
He said the OAG had the authority to press charges against Mr Abhisit and Mr Suthep “but whether the duo will be proven guilty or not depends on the court of law”. He added that he could not say whether the OAG is in truth independent or not.
However, the OAG insisted that the case was not within the jurisdiction of the NACC, because it was about somebody ordering troops to crackdown on the protesters and there was excessive use of force against the protesters, which was beyond the acceptable standard.
The OAG’s controversial decision has somehow set a precedent for the government -- that if there is a mass rally in the future, any minister in charge of security affairs must think twice if he orders officials to put down the protest, because he may face criminal charges if any protesters get killed or wounded as a result of his or her orders.
An even more worrisome aspect about this and other similar cases is how our law professors will teach their students about the rule of law, because our law has been distorted and twisted by our law enforcement agencies to suit their whims and the interests of others.