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Cablegate: Thailand: National Counter Corruption

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 02 BANGKOK 003521

SIPDIS

SENSITIVE

DEPARTMENT FOR EAP/BCLTV. HQ USPACOM FOR FPA HUSO

E.O. 12958: N/A
TAGS: PGOV TH NCCC
SUBJECT: THAILAND: NATIONAL COUNTER CORRUPTION
COMMISSIONERS RESIGN AFTER CONVICTIONS FOR UNAUTHORIZED PAY
RAISES


1. (SBU) Summary: On May 30, eight commissioners of the
National Counter Corruption Commission (NCCC) resigned under
a cloud. A ninth commissioner had resigned earlier, shortly
after the Supreme Court of Justice's Criminal Division for
Persons Holding Political Positions ruled (6 to 3) on May 26
that the NCCC had wrongfully and dishonestly abused their
office by intentionally skirting the law and awarding
themselves a pay raise. The Court sentenced all nine NCCC
commissioners to 2-years imprisonment but suspended the jail
terms in recognition of previous long-standing service to the
country. Incredibly, most of the commissioners apparently
thought they could stay in office, but parliamentary and
public outcry -- and pressure from Prime Minister Thaksin --
forced them out. This case focuses attention on and raises
questions about other constitutionally-mandated "watchdog"
bodies which have also given themselves raises. End Summary.

PARLIAMENTARIANS ISSUE PETITION AGAINST NCCC

2. (U) On May 26, the 9-member Supreme Court of Justice's
Criminal Division for Persons Holding Political Positions
ruled by a vote of 6 to 3 that all 9 members of the National
Counter Corruption Commission (NCCC) had wrongfully,
dishonestly and intentionally awarded itself pay raises. The
case had been simmering since September 2004 when Senator Dr.
Chirmsak Pinthong discovered during a budgetary debate that
NCCC had issued a "regulation" in July 2004 giving all
commissioners a pay raise, including an additional monthly
allowance of Baht 45,500 for the Chairman and Baht 42,500 for
the others. These new allowances raised the total monthly
salary and allowances to Baht 154,000 for the Chairman and
Baht 147,000 for the other commissioners, levels above those
received by the Prime Minister (Baht 115,920) and all other
ministers, senators and congresspersons. As a consequence of
this discovery, 203 Parliamentarians (108 senators and 95
members of Parliament, including one MP from the Thai Rak
Thai Party) led by Senator Pratin Santiprabhob, Chairman of
Senate Extraordinary Committee Investigating Corruption, sent
a petition through the President of the Senate on October 6,
2004 to the appropriate court to initiate proceedings against
the NCCC.

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CONVICTION AND SUSPENSION OF SENTENCE

3. (U) The Supreme Court reviewed the case and focused
principally on the charges as contained in the petition, i.e.
malfeasance charges and alleged abuse by the NCCC of its
authority in awarding itself the pay raises. After
investigations, and testimony by the commissioners, the
Court found that the NCCC had given itself new benefits even
though it understood it had no legal authority to do so. The
Court noted that Article 253 of the Constitution provides
that "salaries, emoluments and other benefits of judges shall
be provided by law," not by the method of "regulation" used.
Article 253 specifically stipulates that its provisions apply
to NCCC commissioners. The Court therefore convicted all
NCCC members and sentenced them to 2-years imprisonment. The
Court suspended the jail sentences for two years in
recognition of the commissioners' pervious positive records.


NCCC COMMISSIONERS LINGER DESPITE VERDICT

4. (U) This landmark verdict initially threw the NCCC into
a state of confusion because it did not specifically remove
all nine-members of NCCC from office. One commissioner
resigned on May 27, but the others clung to office, with
their supporters citing a Constitutional Court precedent from
1999 involving Newin Chidchorb, who then (as he is now) was
Deputy Minister of Agriculture and Cooperatives. In 1999,
the Provincial Court of Buri Ram had convicted Newin on a
defamation charge, given him a sentence of six months'
imprisonment, but suspended it for one year. The
Constitutional Court had then judged the suspended term to be
merely nominal, which allowed Newin to remain in office.
Some NCCC Commissioners and their supporters initially argued
that the Newin judgment was applicable in their case and that
they could continue in office, despite conviction, in
accordance with the Articles 260 and 298 of the Constitution.
The problem of the NCCC commissioners was further compounded
by Article 300 (para 3) of the Constitution which specified
that once a case is referred to the Supreme Court of
Justice's Criminal Division for Persons Holding Political
Positions for trial and adjudication (which Newin's had not
been), the accused shall not perform their duties until this
Supreme Court dismissed the case. In the NCCC matter, the
Supreme Court had handed down a verdict. Armed only with
these thin technical arguments, NCCC members seemed ready to
try to remain in office after conviction and when the law
prohibited them from performing their duties.

ALL RESIGN AFTER PUBLIC OPINION TURNS

5. (SBU) The convicted NCCC commissioners weathered a few
day of fierce public debate -- probably the most intense
debate on contradictions in the 1997 Constitution since it
was adopted -- before stepping down on May 30. Although the
opposition Democrats (DP) led the calls for resignation, PM
Thaksin weighed in heavily for resignation as well despite
the fact that all the commissioners were selected during his
first administration and were generally regarded as choices
he had favored. The NCCC resignations open the way for
selection of new commissioners, but the process is likely to
be difficult. Article 297 of the Constitution requires
selection of new nominees to be made by representatives of
five political parties with members in the Parliament. After
the overwhelming TRT victory in last February's elections,
only four political parties have members in Parliament,
including Mahachon which only elected two MPs. To proceed
with selection of new commissioners, the Constitution will
have to be amended beforehand.

6. (SBU) Comment: This involvement of the NCCC in
controversy is a blow to the prestige and credibility of
other constitutionally-mandated independent "watchdog"
bodies. It is open knowledge that the Election Commission of
Thailand, the Constitutional Court and the Office of the
Ombudsman have all awarded themselves income increases using
similar methods to those of the NCCC. All seem vulnerable to
formal charges. Though for some observers, the dispute over
the raises was complex and fell into a gray area in which the
constitutional bodies might have been understood to be
empowered to direct their budgets, the court decision and the
public outcry were very black and white and condemning. End
Comment.
ARVIZU

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