The Power of Money

The Asset Examination Committee ("AEC") is a special task force set up by the junta. As Mr. Kaewsan Atipoti, member  and secretary general of the AEC informed the National Legislative Council earlier last week that "the AEC functions as a special attorney"  set up to carry out this special investigation against Dr. Thaksin Shinawatra and his family.

Generally, in any criminal investigation, it is prudent to find the 'motive' of the defendant. Let us try to find out if there is any 'motive' behind all the investigations carried out by the AEC. Or is it just because the AEC is more active than any other governemnt offices?

The other government authority in charge of fighting corruption is the National Counter-Corruption Commission ("NCCC") set up by the Organic Act on Counter Corruption. Since 1999, it failed to issue any regulation with respect to the payment of a monetary reward to any informant providing information on any wrongdoing.

But the AEC, after being appointed by the junta on 30th September 2006, took only 75 days to issue such regulation! On 14th December 2006, Mr. Nam Yimyaem, Chairman of the AEC, has independently issued the Regulation with respect to the payment of a monetary reward to any informant providing information on any wrongdoing against the government. At the time when Mr. Nam Yimyaem signed this Regulation, the term of office of the AEC was until September 2007, what an efficient officer!

Is the AEC's Regulation on reward payment similar to any regulation of any other authority?

Another government office which has its own regulation on reward payment to informants is the National Counter Money Laundering Commission ("NCML"). In 2003, the NCML has issued its Regulation on reward payment to informants of money laundering transactions. The interesting thing is that the AEC's regulation and the NCML's regulation are a world apart!!!

The NCML's Regulation sets out the procedure for informants to notify, inform, or 'tip-off' various officers but none of them shall remain 'confidential'.  Forms are required to be filled-in and officers in charge need to be informed, so later on, the reward can be justified and traced.

The AEC does not need all that. Clause 6 (2) of the AEC's Regulation allows the informant to be and remain anonymous. What the informant needs to do is to meet with the Chairman, gives him the information and once the Chairman acknowledges this in writing, it's all done!

Why is it that no other government authority can check or verify this informant as well as the received “information” in order to ensure that the reward is well deserved and within the requirement of the law?

We shall not overlook one fact that any officer working for the AEC or the NMCL is not entitled to any reward payment. But children, spouses or friends of members and officers of the AEC do not face this kind of restriction, so they can very well be an informant! In such case, if we assume that a son or a daughter of any officer of the AEC may inform the Chairman, and if he acknowledges the information, that informant is entitled to the reward money automatically! Is this kind of scenario possible?  Is this the scenario where the NCML requires the payment to be approved by a committee, not an individual?

Clause 16 of the NMCL's Regulation clearly states that the NMCL will not grant any monetary reward for any information which the NMCL would normally find out by itself from any ordinary investigation. The rational behind this is really simple. If the NMCL can find the wrongdoing and get evidence to file charges by itself, why need to give any reward!  A reward should be granted to someone who provides very useful information such as that without the given information; the NMCL may never find the guilty person. There is no such provision in the AEC's regulation. The AEC does not care whether such information is useful or not. Once the Chairman signs the acknowledgement, it's all done!
The NMCL's regulation requires the Reward Payment Committee to review the usefulness of the given information and grant a reward in proportion to the degree of success relying on such information. We found no such provision in the AEC's regulation.

All the corruption claims made against Dr. Thaksin Shinawatra, though no single evidence has yet been concluded to file official charges against him in a court of law, were publicized for years. If we apply the NMCL's standard and rationale, it is unlikely that anyone will be granted such reward. Is that the reason why the AEC needs its own standards?

Many people seem to find inconsistency in the standard of laws and rationale used by the AEC.  At the time when the AEC accused Dr. Thaksin of abuse of power to provide unjust benefit to Shin Corporation, they claimed that Dr.Thaksin is and has always been the shareholder of Shin Corporation. They concluded that his children and cousins are simply acting as his 'nominees'.

But when the AEC wants to file charges on income tax fraud, they found, without any hesitation, that Dr. Thaksin's children and cousins, as shareholders of those Shin Corporation shares, did not file tax returns and did not properly pay income tax on gain derived from the sale of Shin Corporation shares. So many people remain confused whether Dr. Thaksin owns those shares or not, thanks to the inconsistency of the AEC.

Or maybe if the AEC sticks to just one rationale; i.e. Dr.Thaksin is and has always been the shareholder of Shin Corporation, then all the tax claims made against his children and cousins will never materialize. In such case, a specific person may not receive the 'reward' for 'tip-off' on tax fraud.

There is a proverb that “nothing is certain but death and taxes”. Every day, certain officers of the Revenue Department spend days and nights investigating on tax fraud throughout the country. There are billions of Baht every year that the Revenue Department receives as penalty for tax mishandlings. Why do those dutiful officers never receive any 'reward' other than their marginal paychecks?

Why is there a 'tax fraud' provision for granting a 'reward' included in the AEC's Regulation but this provision shall not be applicable to any Revenue Department Officers? Also this tax fraud was claimed by political enemies of Dr. Thaksin for such a long time even though the officers of the Revenue Department opine differently. Only after the coup d’?tat, there were orders to remove those officers, the tax fraud charges then were filed against Dr. Thaksin.

Is the 'reward' the motive?

Mr. Nam Yimyaem was appointed by the junta. He was not elected or selected to carry this title by any democratic means. He did not receive expressly or implied any public mandate but the junta's one. While the Regulation of any other Government Office like the NMCL which has been set up by order set forth in the democratically drafted and approved Constitution of the Kingdom of Thailand B.E. 2540, and does not give full authority to any individual, Mr. Nam Yimyaem did issue the AEC's Regulation by himself, authorizing himself to have absolute power, without any supervision from any other offices.

The public offices like the NMCL need procedures to ensure transparency. Is Mr. Nam Yimyaem beyond transparency? No one is entitled to neither examine nor verify any of his decisions.  Why is it that his signature is good enough for every one else in the country to simply trust and sign the check? Even for any Court of law, people still have the possibility to appeal to the Court of Appeal and the Supreme Court. However, how can it be that one shall have neither the right nor the possibility to challenge any of Mr. Nam Yimyaem’s decisions?

If one reads the NMCL's Regulation on Reward Payment, there is one interesting provision, i.e. Clause 5, which states the following:

This Regulation is not an advertised offer to give a reward to anyone.  This is a government regulation on procedures of granting a reward to a person who submits valuable and useful information to the officers which shall be considered as the Government deems appropriate."

One will find a similar provision in the Regulation on the Reward Payment by the National Anti-Narcotic Commission, i.e. Clause 7, which states the following:

 This Regulation is not an advertised offer to give a reward to anyone.  This is a government regulation on procedures of granting a reward to a person who submits valuable and useful information to the officers which shall be considered as the Government deems appropriate."

There is no such provision in the AEC's Regulation. WHY?

Is that provision not of any use? Is that provision intended to protect the Government or someone else? Why is it that certain provisions are considered good enough to put in the regulations by at least 2 government agencies but not good enough for the AEC? Is it true that without any such provision in the AEC's Regulation, the Regulation becomes an offer or a promise irrevocably by the government? In the future, the new government or any authority who will take over all of the AEC's assignments cannot change the terms and conditions of this Regulation even if they want to.

Mr. Nam Yimyaem is a senior judge, an experienced lawyer. Can it be that he simply forgot to insert such kind of provision? Will this issue do any harm to the government in the future? What is his real motive behind all this?

Thai people deserve to know the facts and the truth.