A way out after two trials in two decades
Once again, Thailand is gripped by another high-profile court trial in yet another round of political brinkmanship. The much anticipated verdict today on Yingluck Shinawatra's handling of the rice-pledging scheme while in office is reminiscent of her eldest brother Thaksin Shinawatra's assets concealment case 16 years ago. In fact, Thailand's political landscape so far in the 21st century can now be book-ended by these two politicised cases that are likely to end up with different outcomes while going in the same direction. In turn, the Yingluck verdict can serve as another reminder of what Thailand needs to do to move on from its two-decade political malaise underpinned by half a dozen elections, violent street protests, and two military coups.
On Aug 3, 2001 as the 15-member Constitutional Court was about to read the verdict on Mr Thaksin's assets concealment, the mood in Bangkok was ominous. He was charged with hiding several billion baht of assets under the names of his household staff in contravention of the reform-driven constitution of 1997 that promoted transparency and accountability. The then-National Counter Corruption Commission had indicted Mr Thaksin on an 8 to 1 vote in December 2000, just days before his Thai Rak Thai (TRT) party won a general election in January with more than 11.6 million, or 40% of popular votes, and 248 seats in the 500-member lower house of parliament.
In the eyes of his sceptics and the supporters of the 1997 charter, Mr Thaksin had to know that his money was being registered under his servants' names, despite pleading that his wife completed the assets declaration without his full knowledge. The NCCC's damning indictment surely could not be reversed, or so those bent on integrity and good governance thought.
But Mr Thaksin had the tide of Thai politics going for him at the time. He rose to the premiership promising to kick out the International Monetary Fund and restore Thai economic prowess after the ravages of the 1997-98 economic crisis. His TRT-led government had innovative and so-called "populist" policies to boost the grassroots for economic growth through consumption as well as exports. His critics ended up in the small minority. Most people, including many who would later turn out to be his enemies and detractors, were pulling for him.
Incredibly, the Constitutional Court's 8-to-7 verdict was a profound fudge. Seven judges ruled Mr Thaksin guilty outright. The other eight were split, four insisting he did not know about the hidden assets while the remainder said the court had no jurisdiction over the case. It arguably marked the beginning of the end of the 1997 constitution. The Constitutional Court lost credibility, where as the NCCC was marginalised. Not long after, Mr Thaksin mopped up smaller parties and made TRT into a juggernaut, winning re-election in February 2005, this time with 77% of lower house seats.
This is where Thai politics encountered a major inflection point. After his February 2005 victory, Thaksin became as unstoppable as over-confident. A mutual antagonism soon emerged between him and established centres of power which had earlier given him the benefit of the doubt. Brinkmanship ensued. Mr Thaksin was as hubristic and defiant as his adversaries were self-righteous and vindictive. Street protests from August 2005 swelled into the yellow-clad People's Alliance for Democracy after Mr Thaksin sold his family-owned Shin Corp for 73 billion baht, completely tax-free. Mr Thaksin's sins of graft and conflicts of interest were quickly laid bare.
It was an ugly period in Thai politics that eventually ended with a putsch on 19 Sept 2006. Mr Thaksin was on the back foot, and he kept back-pedalling while staying inside democratic boundaries. Had his opponents not seized power and instead dealt with him in the electoral arena, Thai politics and its fledgling democratic system under the popular 1997 charter might have had a chance to maturate and consolidate.
Beating Mr Thaksin at his own electoral game should be the chief lesson of the past two decades. The September 2006 coup, like its sequel on 22 May 2014, can be staged but cannot avoid eventual polls. After the 2006 coup, Mr Thaksin's party won again in December 2007, despite a new military-inspired constitution. More political drama and street demonstrations and violence rolled into the July 2011 election, which Mr Thaksin conquered again, this time under Ms Yingluck and the Pheu Thai Party.
The Yingluck verdict is par for this course of Thai politics between Mr Thaksin and his opponents who have managed to make a crook in 2001 into a martyr of sorts in 2017. For the prosecution, her case is as weak as the case against Mr Thaksin was strong. Ms Yingluck is not accused of corruption but of negligence of duty over a manipulative rice-pledging policy she and Mr Thaksin campaigned on to win the last election.
To be sure, there was manipulation. When the election timetable was announced in early 2011, Mr Thaksin was looking around for a policy platform that could recapture his 2001 and 2005 successes. Of course, this had to involve numbers that were easy for voters to remember. And so came 15,000 baht for a tonne of rice, 15,000 baht for bachelor degree holders, 300 baht per day minimum wage, and so on. The key numbers were 15,000 and 300, just as they were one million baht (for every village) and 30-baht health care in earlier elections. These were numbers to pander and take over the electorate rather than rationally calculated policy programmes with logic and longer-term policy objectives. So Mr Thaksin's and Ms Yingluck's opponents have a point about policy manipulation.
Whether and how much the rice-pledging led to colossal losses as claimed is a different matter. Mr Thaksin's idea was to corner the world rice market by accumulating Thai rice and paying farmers handsomely up front. If the accumulated rice could be flipped into world markets with higher prices, then it would be a win. If not, it would incur corresponding losses. As it turned out, Thailand is no longer the only major rice exporter. The rice pledging was a profligate gamble and a financial disaster whose exact losses can only be determined when the stored rice is sold and the proceeds compared to the original purchase prices.
Yet the bottom line is that this was an election campaign pledge, which was implemented accordingly. To counter a policy that stakes the public purse to win votes, the best way would have been in the electoral arena by informing the electorate of downside risks. The policy disaster might continue anyway, and so political opponents of Mr Thaksin and Ms Yingluck should have waited for the next round of polls and worked to win it with more prudent and appealing policies.
At issue for Ms Yingluck is whether she will physically end up in jail. A guilty verdict without a suspended sentence will land her there, and make her a heroine in the eyes of millions, even though she is no Aung San Suu Kyi by any stretch of the imagination. The opposite would be an acquittal, which would pose a legitimacy crisis for the military regime. Staging the coup in May 2014 was premised on corruption and mismanagement with particular reference to the rice policy.
So a mid-range outcome is most likely, letting her fight another day while being politically neutralised ahead of the next polls. In any outcome, Thailand's judicial system may be subject to more doubt.
Thailand is where it has been for the better part of 20 years. Coups will have to end up with constitutions and elections. The best way to get out of this vicious cycle -- and now there is a window of opportunity for the powers-that-be on all sides in Thai politics -- is to renegotiate and retool charter rules and related laws for all outcomes to be determined in the electoral arena under rule by the electorate. Otherwise the recent past of protest, confrontation and turmoil will return to haunt and keep Thailand stuck.
Thitinan Pongsudhirak is associate professor and director of the Institute of Security and International Studies, Faculty of Political Science, Chulalongkorn University.
An associate professor at Chulalongkorn University
An associate professor and director of the Institute of Security and International Studies at Chulalongkorn University’s Faculty of Political Science, with more than 25 years of university service. He earned his MA from The Johns Hopkins School of Advanced International Studies and PhD from the London School of Economics where he was awarded the UK’s top dissertation prize in 2002.