Key points of former prime minister Yingluck Shinawatra’s closing statement on rice-pledging scheme case delivered to the Supreme Court’s Criminal Division for Holders of Political Positions on 1 Aug 2017. The key points of the statement, both in Thai and English, were sent to the media by Ms Yingluck’s lawyers team.
1.The investigation, charge and prosecution is unfair and unlawful
- I quote the saying of Professor Sanya Thammasak, former President of the Supreme Court and former President of the Privy Council that “the police is like the upstream of justice, the public prosecutor like midstream and the court is like downstream. The upstream must be clear and clean to make the downstream clear and clean too. If the upstream is muddy, the downstream will also be muddy. If so, the citizens may not receive justice.”
- During the NACC’s stage, like an upstream, is full of suspicions because the NACC, after only 79 days of investigation, hastily decided to file a charge against me with only 329 pages of documentary evidence and such decision was made even though corruption charge against others relating to rice sales was not yet been concluded. The NACC asserts all along that the charge is not related to me.
- During the pre-prosecution stage, the Attorney General was of the opinion that the NACC’s inquiry file contains incomplete grounds and further investigation is needed into 3 issues such as 1) whether I, as the Prime Minister and Chairman of the National Rice Committee may suspend or cancel the Rice Pledging Scheme (RPS), 2) the Cabinet’s policy announced to the Parliament, omission of duty issue, and 3) corruption issue. However, the Attorney General decided to file charge against me even though no further investigation has been conducted as proposed and such decision had been made only one hour before I was impeached by the National Legislative Assembly and was questioned by the public as politically motivated.
- During the prosecution and trial stage, the criminal charges against me unfairly and unlawfully contain facts and grounds not included in the NACC’s inquiry file, namely, the deterioration of rice issue and the corruption in the RPS issue, both of which have never been investigated by the NACC and included in an inquiry file against me. During the trial, the plaintiff suspiciously added further new evidence which has never been heard in my case such as 1) adding “Rice stock auditing report” made by the Rice Stock Auditing Sub-committee appointed after the coup by the NCPO Chief and concluded after the filing of the charge against me. The said committee changed the rice grading system to grade A, B and C for which no standard is set and the Commerce Ministry has never so graded, resulting in drastic drop in value of the rice stock, 2) suspiciously adding and citing the finding of tortious liability several months in advance of the actual finding as if the plaintiff knew the conclusion and uses it for the plaintiff’s benefit to support the damage in the RPS. This suspicion and unfairness is consistent with the NCPO Chief’s order and remark made to the Fact finding Committee on Tortious Liability on May 18, 2015, in his capacity of the Chairman of the National Rice Policy Committee, that, “no need to consider justice issue”, and 3) long after the bringing of charge against me, adding as plaintiff’s new evidence, 60,000 pages of documents relating to other persons’ charges of alleged corruption in Government to Government rice sale.
- The making of story and unlawful adding of new evidence against me in such a way that bringing the criminal charge against me first and find additional evidence to submit to the court later is not only unfair but is also tantamount to leading the trial and the public to believe that I am guilty and liable to damage despite the fact that the criminal case has not yet been decided.
- The present government exercised the executive power, as if it were the judiciary, by unlawfully issuing an administrative order under the Tortious Liability of Officials Act B.E. 2539 (1996) requiring me to solely pay up 35,000 million of damages. On July18, 2017, the government exercised its special power under section 44 ordering the seizure and total withdrawal of money from my bank accounts and such action led the public to misunderstand me and may unfairly affect the trial.
- I trust that never before has anyone implementing public policy for the benefit of the country been unfairly treated and his own assets been seized before the criminal case is decided. This is against the international justice principles and section 29 of the Constitution which stipulates that “…A suspect or defendant in a criminal case shall be presumed innocent, and before the passing of a final judgment convicting a person of having committed an offence, such person shall not be treated as a convict.” No one has ever suffered as harsh and unfair fate as me.
- The plaintiff’s adding of more than 60,000 pages of new evidence during the trial is not only improper but also not in the interest of justice which is the condition newly set out as per paragraph 6 of section 235 of the present Constitution. With utmost respect to the court, I am the defendant and is entitled to the trial which is in accordance with the Constitution. I have submitted requests 3 times begging the court to refer the issue to the Constitutional Court under section 212 of the Constitution but all my requests have been dismissed. However, I beg the court to grant me justice by not considering to my detriment those 60,000 pages of new evidence added by the plaintiff.
2. The RPS is the beneficial public policy and implemented lawfully.
- The RPS is a good and beneficial public policy based on sound economic principles. The scheme is not aimed at making profit from rice farmers but, instead, it is aimed at raising income of over 15 million rice farmer equivalent to 23% of the country population in order to receive adequate income comparable to minimum wage of 300 baht per day. The scheme generates economic values and return, both at the grass-root level and macro-economic level.
- The RPS was implemented in good faith, in accordance with the Constitution and laws. Firstly, the scheme was implemented under the Directive Principles of State Policies under section 84(8) of the Constitution B.E. 2550(2007) requiring the state to protect and safeguard the interests of rice farmers. Secondly, the scheme was implemented under the Cabinet’s policies announced to the Parliament and the government was bound to implement as per the Constitution B.E. 2550(2007). Thirdly, the scheme was implemented under Administration of State affairs Plan B.E. 2555-2558 and, as such, it obliged me and the Cabinet to comply. The implementation of the RPS did not contradict the policies or cabinet resolution.
3. I have never neglected my duty and have no power to stop the RPS arbitrarily.
The steps and procedures involving the implementation of the RPS were in accordance with the Constitution, laws, regulations and cabinet resolutions.
- All parties, committee, government agencies involved were appointed and authorized to discharge their respective duties within the authority set for them. All parties jointly set the measures, criteria, and operating practices. The main responsible agencies such as Office of the National Economic and Social Development Board (ONESDB), the Budget Bureau, and the Council of State and other operating agencies have never warned against or called upon the discontinuation or suspension of the scheme.
- The procedures and working process were set according to cabinet resolution so that each party could check and balance the performance and discharge of their respective duties. I could not order the discontinuation or ending of the scheme arbitrarily as Constitution and laws require the government to implement the scheme.
- The RPS was managed under the principle of “limited use of power”. All government agencies worked under an integrated system. The Ministry of Commerce, the Ministry of Agriculture and Cooperatives and the Ministry of Finance are key ministries responsible for the scheme. Other participants included other government agencies, stated-owned enterprises, the National Rice Policy Committee and its thirteen subcommittees. Each unit at each level has its own responsibilities and chain of command to allow proper checks and balances.
- On my capacity as Chairman of the National Rice Committee, I have never neglected my duties nor omitted to perform my duties because I have delegated my responsibility to the Deputy Prime Minister and the Commerce Minister to act as Chairman of the National Rice Committee and if any matter came up, it was the duty of those persons to report to the Cabinet and the Prime Minister for consideration.
- The Constitution requires the Cabinet to have collective responsibilities but the plaintiff misunderstood that the Prime Minister has sole power and may exercise the power as he/she deems fit. When I was the Prime Minister, ministries working with the National Rice Committee and sub- committee have their own responsibilities required by laws. I could not exercise my power arbitrarily to interfere, make order, or influence the operating level for anyone’s interest. The current Prime Minister should well understand the limitation and that is why special power under section 44 is needed to conduct state administration which elected government like mine never had.
4. Not cancelling the scheme due to its benefits and no damage was caused as charged.
- The RPS is beneficial and generates worthiness and value concerning the public administration and in evaluating the value of the public project, not only the benefits calculable in monetary term but also other benefits to the society arising from the project must be taken into account as the public project is not for profit seeking. However, the NACC and the plaintiff have not taken other benefits into account. Miss Supa Piyajitti, the plaintiff’s witness admitted in court that it was not the duty of the Account Closing Sub-Committee to consider the benefits incalculable in monetary term and indirect benefits and such duty fell on the Office of the National Economic and Social Development Board.
- In June, 2013, the National Rice Committee was reported that the overall economic and social benefits of the RPS amounts to 394,788 million Baht, which was 173,819 million Baht greater than the amount of 220,969 million Baht that allegedly claimed as accounting losses by the Account Closing Sub-Committee.
- Office of the National Economic and Social Development Board directly reported to me confirming the necessity to continue the RPS until Thailand fully entered ASEAN community in 2015.
- Burapa University’s research evaluated the RPS in 2012 and the survey by the Bank for Agriculture and Agricultural Co-operatives in June 2013 showed that the RSP had created income security and satisfaction among farmers.
- The research team of the KMIT, Choa Khun Taharn Ladkrabang presented the data showing that during the production seasons under the RPS, the economy expanded and multiplied 3.726 times and generated increased economic return of 1,088,697 million Baht which was greater than the costs of the project.
- The RPS created more purchasing power and more tax could be collected.
- The implementation of the RPS for the period of 5 production seasons was within the legal framework and within the public debt ceiling as confirmed by Miss Sirasa Kanpittaya, official from Finance Ministry testifying in court.
- The implementation of the RPS was within the ceiling of the revolving fund of 500,000 million Baht as set by the Cabinet and the loan for the RPS was within the ceiling set by the cabinet resolution in June 2013. Even the cabinet resolution of the present government in August 2016 confirmed that the residual debts payable under the pledging scheme of agricultural produce from the production year 2011/2012 to 2013/2014 was within the debt ceiling set by the cabinet.
5. I have never performed or omitted to perform my duty illegally to cause damage to anyone and I have never performed or omitted to perform my duty dishonestly
- The NACC and the Office of the Auditor General (OAG) sent warning letters against the RPS to my government. They had no legal duties and power to order the executive branch to discontinue or end the implementation of public policy announced to the Parliament.
- However, I have never neglected to supervise and follow up on the policy implementation as warned by the NACC and the OAG.
- The warning and suggestions by the NACC and the OAG were based on TDRI’s research which proposed that I abolish and end the RPS and replace it by the Rice Price Guarantee Scheme, the policy adopted by the opposition party. Such warning and suggestions did not give me, as the Prime Minister, power to suspend or end the scheme that was not contrary to policies or cabinet resolution.
- I never ignored the warnings and suggestions by the NACC and the OAG and passed them to all responsible parties concerned as I had no ulterior intention to avoid or conceal any wrongdoing in order to allow corruption or cause damage and, after learning of the warnings and suggestions, they had responsibility to address them. No agency opposed and proposed the suspension or discontinuance of the RPS.
- I never ignored report of the Account Closing Sub-Committee and passed it on to the National Rice Committee for their consideration.
- I have duly exercised my power and duty of care as reasonably required of the Prime Minister in such circumstances.
6. I have never neglected corruption in rice sales
- The Sub-Committee on Rice Sale was specifically responsible for the sale of rice stock and the cabinet assigned that responsibility to the Commerce Minister and Foreign Trade Department.
- Mr. Wicha Mahakun, the plaintiff’s witness confirmed that I was not involved in, or consented to any corruption relating to G to G rice sales.
- The NACC did not base its charge against me on the alleged corruption relating to G to G rice sales but, during the trial, the plaintiff unfairly, unlawfully and unconstitutionally added 60,000 pages of new evidence from other person’s inquiry file relating to the alleged corruption involving G to G rice sales so as to implicate me in the alleged corruption.
- The Cabinet exercised due care with respect to rice sales and in November 2012 passed the resolution setting more stringent criteria and measures to prevent corruption in rice sales. Such resolution had been passed before the no confidence debate on the G to G rice sales issue took place in the Parliament. If I had neglected or omitted to prevent corruption or damage as accused, why should the Cabinet and I adopted such stringent criteria well before the debate during which the corruption relating to G to G rice sales was just brought up?
- After the debate in November, 2012, I ordered the Commerce Minister to appoint fact finding committee to investigate G to G rice sales issues raised in the debate but the finding was not concluded and the Commerce Ministry did not report any official wrongfully involved in the G to G rice sales. Moreover, the NACC just concluded their investigation and could only name officials wrongfully involved in the G to G rice sales in January, 2015, almost a year after I had left office.
- The selling of rice stock was the operating steps to be taken by the Foreign Trade Department and the Commerce Ministry and every government follows usual practices. Those agencies were responsible for the selling method and contract documentation and when the sales were made, the Commerce Minister should inform the Cabinet. But after the no confidence debate, no report of G to G sales was submitted to the Cabinet and me.
- I reshuffled and replaced the Commerce Minister with the new one to allow investigation and stop any suspicious action during the NACC’s inquiry. This showed that I did not have ulterior intention to conceal information relating to G to G rice sales and that I have never given consent to anyone to be involved in rice sale corruption as charged.
- Mr. Niwatthamrong, the new Commerce Minister, took various strict measures as ordered by the Cabinet and I such as, signing the MOU with the Chinese government stating intents to sell rice between G to G, increase sales through domestic bidding, and allow G to G sales only if buyer is state enterprise 100% owned by provincial government.
- I ordered Commerce and Finance Ministers to put in place measures to check rice sales by ordering the Customs Department to check amount of rice actually exported at port whether it matches the amount in the sale contract and to set up committee to check the amount of rice sold to retail outlets whether it matches the amount sold through bidding.
- I have duly exercised my power, discretion, and due care over the above matters based on prevailing facts during the time of my tenure.
- Throughout my premiership, I have never performed or omitted to perform my duty illegally nor neglected my duty. I have never concealed any information nor avoided being checked. I had no ulterior intention to cause damage to anyone and I did not have dishonest intention. I had intention and determination to provide benefits for rice farmers, to raise prices of agricultural produce to improve their livelihood which would affect the country economy. My cabinet and I cooperated with all agencies, including the NACC and its suggestions to the cabinet in other projects were adopted.
- In determining whether or not I have performed my duty duly, lawfully, and adequately, the court should consider facts, legal issues, working structure, as well as responsibilities of parties concerned at the time and surrounding circumstances prevailing when I was Prime Minister.
- I am aware that I am a victim of subtle political game. I, therefore, wish to depend on the court, when deliberating my past actions, please kindly consider facts and surrounding circumstances prevailing when I was Prime Minister, not the assumption and present circumstances that have changed.
- In summary 1) the RPS was the public policy aiming at helping rice farmers, not commercial policy that made profit and loss with poor rice farmers. 2) Under the Administration of State affairs Order, there were policy level and operating level having their own responsibilities. Please consider my role as policy supervisor, not operator. 3) I beg the court to make a decision relating to my performance as set out in the NACC’s inquiry file which states that I was not involved in corruption and I did not consent to corruption. Please do not hear and admit new evidence added by the plaintiff during trial in order to cause misunderstanding that I was involved in corruption or I consented to corruption in G to G rice sales, as well as any attempt to make me liable for damages of 35,000 million Baht which is consistent with the NCPO Chief’s order in his capacity of the Chairman of the National Rice Policy Committee that, “no need to consider justice issue”
- As Prime Minister, I have duly performed my duty within the power under the Constitution and laws. I have never neglected anything that cause damage to the country and people. I have acted in good faith and never consented to any corruption by others. I have never performed or omitted to perform my duty illegally to cause damage to anyone and I have never performed or omitted to perform my duty dishonestly.
- I have done nothing wrong. What I have done is that I used my experience of ordinary woman borne in the provincial area having opportunity to learn and feel severe hardship endured by farmers which we call “the spine of the nation” and call on all Thais to take care of them. I have done so under the RPS. There is proof that during the implementation of the RPS, the rice farmers have better quality of life, their children have opportunities to further their studies. It is the pride of my life that once I had a chance to implement this policy for rice farmers.
- I believe in the saying that “the court is the last resort of the people”. I beg the court for kindness and please dismiss the charge.