Legal doubts over defence for Yingluck

THE CASES AGAINST former prime minister Yingluck Shinawatra regarding the controversial rice-pledging scheme are not comparable to that against a former central bank governor who was recently acquitted, according to lawyers familiar with both proceedings.

One difference lies in the approaches adopted by prosecutors, the lawyers said.

Comparisons between the two sets of cases were first cited by Yingluck’s lawyer Noppadon Laothong, who pointed out that both Yingluck and former Bank of Thailand governor Rerngchai Marakanond were being held accountable for damages stemming from government policies.

Noppadon also served as Rerngchai’s attorney.

However, while Rerngchai’s case proceeded through the civil courts, Yingluck will probably face administrative measures handed down by the government of Prime Minister Prayut Chan-o-cha, who is considering authorising the Treasury Ministry to order the former premier to pay Bt35.7 billion in compensation for huge losses resulting from the scheme.

Both Yingluck and Rerngchai were told to cover damages calculated based on profits and losses, which Noppadon opposed on the grounds that such calculations should not be applied to policy-making decisions.

Rerngchai was initially charged for Bt185 billion in damages for losses related to the central bank’s defence of the baht, which drained national foreign-exchange reserves.

But he was cleared last Wednesday by the Supreme Court, which ruled that he was not culpable of recklessness after he was charged with severe negligence under the 1996 Tort Liability Act.

The Prayut government has also filed charges against Yingluck and her government officials under the same act.

Noppadon said he planned to file a petition asking that Yingluck’s case be heard in civil court instead of facing administrative measures, given the similarity to Rerngchai’s case.

However, several public law experts have argued that the two cases are not comparable due to differences in context and detail.

Independent legal academic Chamnan Chanruang said the implications of the Tort Liability Act regarding the cases, which occurred about 15 years apart, could have serious implications. 

“Noppadon should instead go for administrative court,” Chamnan said. “The court didn’t exist until 2001 while Rernchai committed [his defence of the currency] in 1997. But it is there now.”

The essence in both cases is whether the defendants were fully responsible in their actions, Chamnan said, “regardless of their then-official ranks”.

But Jade Donavanik, dean to Dhurakij Pundit University’s Faculty of Law, said the official positions mattered because they reflected how much responsibility for which accused people should be held accountable.

“Difference in ranking is significant here,” Jade said. “Yingluck’s premier position signified that she was the leader of the whole administration and policy-making process, while Rerngchai’s governor seat meant that he still needed further considerations from the then-government.”

Although the two cases both relate to governmental policy, the currency defence was an urgent and necessary action because speculators were attacking the currency during the time of the Asian financial crisis, Jade said, adding that Yingluck’s actions were planned ahead of time and continued despite mounting criticism.

“The clear difference is the rice-pledging scheme was graft-related,” the dean said. “The case involved many actors who were found to have conflicts of interests. This did not happen with Rerngchai’s scenario.”

Jade is also an adviser to the drafters of the new charter appointed by the ruling National Council for Peace and Order.

Preecha Suwannathat, former dean to Thammasat University’s Faculty of Law, said the standards derived from the two cases should not be applied to each other because of the apparent discrepancies in the facts. “A responsible court will eventually rule on this,” Preecha said. “But with this difference, Rerngchai’s prosecution should not be cited for that of Yingluck’s.”