US embassy cable - 05BANGKOK3521

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 - National Counter Corruption Commission 
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. 
 
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