Prosecuting a country's 'CEO' a risky move
Should chief executive officers (CEOs) who inflict losses on companies be jailed for mismanagement and then be forced to compensate the firms? If so, national leaders -- like ousted premier Yingluck Shinawatra who is undergoing a criminal trial for implementing the supposedly loss-ridden rice-pledging scheme -- could face the same prospect of punishment for a flawed project.
But, beyond the sphere of the current prosecution of Ms Yingluck and politicians from her camp in Thailand, that sort of criminal punishment has rarely been applied in countries where logic and common sense still form the basis of law enforcement -- where the boards of companies mainly sack a CEO or where parliament impeaches a prime minister or president.
In its efforts to take legal action against Ms Yingluck for her failure to stop the allegedly loss-ridden scheme, the National Anti-Corruption Commission (NACC) has once again challenged the principle of the malfeasance law, Section 157 of the Criminal Code.
Surasak Glahan is deputy editorial pages editor, Bangkok Post.
But its filing of criminal charges against the former premier for the "flawed" policy could not only risk distorting the original intentions of the law but also discourage future governments from coming up with bold and creative policy platforms.
Ms Yingluck is not the first politician to be tried under this law. Previous members of an administration of her brother, ousted premier Thaksin, were also charged under this law by the NACC for alleged wrongdoing in policy-making, after the military staged a coup against the Thaksin government in 2006.
During that period, the new enforcement trend stirred concerns among legal experts, including former deputy-general of the Courts of Justice Sarawut Benjakul and former attorney-general Kanit Nanakorn. They cautioned that the malfeasance cases against politicians from the Thaksin camp and high-ranking state officials might not serve the law's original intention.
The malfeasance law, comprising only 57 words, broadly states that officials who perform their duty wrongfully or neglect them, cause damage to any party or who act dishonestly are subject to imprisonment of up to 10 years or a fine of up to 20,000 baht or both.
The intention of this law is actually to give a means of protection for ordinary people against abuses of power by state officials such as extrajudicial torture by police during questioning.
But the NACC has used it to mainly punish politicians of the Thaksin camp for their "flawed, illegal and self-serving policies". They include two cases against Thaksin cabinet members for implementing two pet projects: The rubber saplings programme and the two- and three-digit lottery scheme. The Supreme Court in 2012 acquitted all 44 defendants in the first case and 43 of 46 defendants in the second, citing a lack of solid proof of their corruption and ill-intent The other three in the lottery case were given suspended jail terms.
Prior to the 2006 coup, the malfeasance law was rarely applied against government members. The only time was in a case filed by a judge against former prime minister Anand Panyarachun and three other high-profile figures for the alleged delayed appointment of a judge to a higher position in 1992. The Supreme Court acquitted all of them since no ill-intent in their actions.
But after the coup, the use of this law became rampant as the military government tried to investigate corruption cases against members of the ousted administration.
The only two politicians found guilty in the past on the basis of this law were were former deputy finance minister Varathep Rattanakorn over his role in the lottery scheme and former information and communication technology minister Surapong Suebwonglee, who was given a one-year jail term last year for amending a telecom concession. He has since been released from prison.
Similar to many cases against her brother and his lieutenants, shouldn't the alleged wrongdoing by Ms Yingluck be considered administrative or political wrongdoing rather than a criminal offence?
Arguably, the alleged mismanagement of her rice scheme was a policy misstep. But the graft busters see it as a criminal act. Legally, that means they need solid proof of motive and intent to enforce the criminal law against her.
The military government meanwhile cites the Civil Liability Act as legal grounds for their quest to seize Ms Yingluck's assets to compensate for the alleged loss of 35 billion baht it claims was a result of her mismanagement.
The alleged rice scheme losses were part of the risks normally associated with the implementation of such a subsidy programme. Other governments and the current one have given similar subsidies.
Unless Ms Yingluck is found to have personally pocketed from the programme, seizing her assets to compensate for the losses is hard to justify and lacking in logic.
The timing of the filing of the case is also questionable since the alleged wrongdoing is still under investigation.
We need governments to be prudent in spending taxpayers' money to finance their populist policies. But we also need to adhere to the principles of the law.
Thailand has suffered losses due to inefficient policies or a lack of accountability under many governments. Take a look at a loss of hundreds of million of baht lost due to the lack of a link between the Purple and Blue line rail systems or the tens of billion of baht being spent to serve the military government's weaponry and military hardware procurement needs. Is this justified? Shouldn't those responsible be prosecuted?
The implications of this case are enormous. The public, the media and Prime Minister Prayut Chan-o-cha should really be worrying less about how big the turnout of her supporters at the court on judgement day is. If found guilty, Ms Yingluck will be the first Thai prime minister to be jailed for a loss-ridden initiative.
A bigger question looming over the future of the country is how the prosecution of a policy-maker such as Ms Yingluck could set a precedent for future governments. Fearing prosecution, policy-makers will avoid creating policies that risk bringing about "losses" of government money.
We all dream of highly accountable and efficient CEOs and prime ministers. But prosecuting them for a criminal offence for recklessness, arrogance or incompetence is far too aggressive and dangerous a move.
Deputy Op-ed Editor
Surasak Glahan is deputy op-ed pages editor, Bangkok Post.