Making Sense of the Supreme Court’s Verdict (by Patiwat)

I’ve spent several hours parsing the Supreme Court’s infallible, but dense, verdict. With all due respect to my journalist friends, the press has been pretty useless in helping me make sense of things. Since I’m not very smart, I have to write things down to make sense of them. And since my narcolepsy gets worse when I go to bed confused, I have to do this now rather than in some “normal” time. So here’s MY take on things, done NPOV-style.*

CONTEXT
The nine Supreme Court judges had to make a judgment on accusations of “policy corruption,” a term first articulated by the People’s Alliance for Democracy, with no legal precedent either in either Thailand or abroad. Policy corruption, as defined by the Yellow Shirts, was abuse of power by implementing economic policies that, while in themselves legal and of potential benefit to society and the economy, also aided companies that were owned in part by the policy maker.** The prosecution claimed that Thaksin abused his powers thus 5 times while Premier.

VERDICT
The court first ruled that Thaksin and Potjaman were the “real owners” of the frozen assets, rather than his children and relatives (who legally owned most of the assets). The court also ruled that it had the authority to seize assets, based on the announcements of the junta (this authority had not existed prior to the 2006 coup).

Count 1) Conversion of telecom concession fees into excise charges. Previously, telecom operators had to pay the TOT/CAT a percentage of their revenue as a concession fee (TOT/CAT are state enterprises owned by the government). The Thaksin government modified this into a system wherein all operators would instead directly pay the government an equivalent excise tax. Thaksin claimed that all operators continued to pay the same total costs. The judges ruled that this benefited AIS while harming the TOT, and thus was an abuse of power. The fact that the government would benefit in equal proportion to the harm inflicted on TOT was deemed not relevant.

Count 2) Modification of a revenue sharing agreement on pre-paid mobile services. Previously, telecom operators had to pay the TOT a percentage of their revenues for post-paid mobile services. To offer pre-paid services, which generally cost less to the consumer, AIS negotiated with TOT to design a revenue sharing agreement for pre-paid services that offered less revenue to the TOT. The judges ruled that the terms of the pre-paid agreement harmed TOT while benefiting AIS. The judges did not dispute the fact that TOT’s total revenue increased substantially as a result of the agreement, but noted that the rise in pre-paid revenue came about while harming TOT’s post-paid revenue. The massive growth in Thai mobile penetration from 13% in 2001 to 80% in 2007, due almost completely to pre-paid services, and the reduction in AIS market share from 68% to 53% in the same period were not taken into account by the court.

Count 3) Modification of mobile roaming agreement. Previously, there were no roaming agreements between mobile operators – subscribers from one operator were not allowed to use services on another operator’s network, thus limiting the growth of the mobile industry. Under the Thaksin government, roaming was allowed, with roaming fees deducted from the revenue that AIS and other operators had to share with TOT and other state enterprises. Essentially, TOT helped AIS shoulder the costs of its subscribers roaming on the mobile networks of other operators. This reduced TOT and CAT’s income while benefiting the operators. However, the judges ruled that while it benefited AIS, it did so to the benefit of AIS’s new owners (Temasek Holdings) rather than Thaksin, and hence was not an abuse of power.

Count 4) Replacement of ThaiCom 4 with iPSTAR. A previous government had originally contracted with ShinSat to launch and operate ThaiCom 4 as a backup satellite for ThaiCom 3. Instead, ShinSat negotiated with the Thaksin government to launch iPSTAR, at the time the largest commercial satellite in history, which it claimed could offer commercial internet services while also providing backup for ThaiCom 3. Shin Corp’s ownership in ShinSat was subsequently reduced from 51% to 40%. The judges found that the changes in ownership and satellite specification change reduced Thailand’s communications security. It also noted that the negotiations allowed ShinSat to launch a satellite with much greater commercial potential than ThaiCom 4 without having to bid for a separate concession agreement.

Count 5) EXIM Bank loan to Myanmar to pay for ThaiCom services. Thaksin met with Burmese leaders to negotiate trade deals between the two countries. One of the deals negotiated gave Myanmar a Thai EXIM Bank loan to purchase 376 million baht in satellite services from ShinSat. Thaksin noted that many deals were struck in the negotiations, and that 16 other companies also benefited from the EXIM Bank’s loans. The judges ruled that the loans gave preferential treatment to ShinSat, and hence were an abuse of power.

PENALTY
The court found Thaksin guilty of 4 out of 5 counts of policy corruption, and ordered that 46 billion in his assets be seized. The remaining 30 billion continued to remain frozen, as they had been for the past 3.5 years.

The judges said they decided to seize 46 billion because it was the difference in value of Shin Corp. shares from the date before he came to office and the value when the shares were sold to Singapore’s Temasek Holdings in early 2006. During that time, Shin Corp shares increased from 38 to 104 baht (an increase of 173 per cent) while the stock price of Shin Satellite fell. In the same period, the Stock Exchange of Thailand index rose 161 per cent.

IMPLICATIONS
The verdict sets a very low bar for what constitutes policy corruption. Since Abhisit’s father sits on the Board of CP Foods, accusations of policy corruption could possibly occur if government programs were devised to promote the development of the Thai food industry. Dick Cheney’s Halliburton stock options while in office also come to mind. Only those whose family members have no private employment/income or equity holdings would be free from blame.

That being said, the “network” hypotheses leave the possibility that policy corruption will be only one of a variety of tools very selectively chosen to defeat enemies of the state.

The method of calculating the penalty shows an obvious lack of economic finesse, but one’s expectations cannot be too high on such matters. More important is the fact that sooner rather than later, 30 billion baht in funds that had been frozen for the past 3.5 years could be returned to Thaksin’s coffers. The fact that this would be allowed goes entirely against the world view that Thaksin’s money is the lifeline of the red shirts and that cutting off this lifeline is a neccesary condition to restoring peace to the land. There is no end to surprises in Thai politics.

NOTES
* Neutral Point of View, a style of writing that represents fairly, proportionately, and as far as possible without bias, all significant views that have been published by reliable relevant sources. I use it to make sense of the facts – and only then do I go and form my opinions. It also happens to be the style required by Wikipedia.
** My cousin compares policy corruption to a situation where a village headman in a village with 100 house holds and 101 buffalos (one of which is owned by the headman) uses government funds to buy an unused plot of land and allows the 101 buffalos to eat grass on the plot. The headman’s buffalo is benefiting from his own policy decision, and is guilty of policy corruption.

SOURCES
Bangkok Pundit, Live blog: Thaksin Assets seizure case
http://www.nationmultimedia.com/home/2010/02/26/politics/Timeline-on-Thaksins-Judgement-Day-30123503.html
http://www.nationmultimedia.com/home/2010/02/23/politics/Its-tricky-one-Thaksin-case-has-no-legal-precedent-30123215.html
http://www.thaksinlive.com/2010/02/headlines/722
http://en.wikipedia.org/wiki/Thaksin_Shinawatra#References