In the Land of Smiles where the judiciary has increasingly been a channel widely sought to settle political conflicts and end political cases, one minority judge's ruling on the case against ousted premier Yingluck Shinawatra reminds us how far we can go when it comes to criminal prosecution, or to put it in laymen's terms, putting someone in prison.
In opining why Yingluck, who fled the country in August, should not be found guilty of two criminal charges against her in the rice-pledging scheme case, judge Pisol Pirun upholds to one legal principle: proof beyond reasonable doubt.
According to his ruling released last week, the judge argued the universal legal standard required for any criminal prosecution is lacking in this case.
Last month, the Supreme Court handed down a five-year prison term to Yingluck for her failure to take action against corruption in government-to-government rice sales, even though she was aware of irregularities.
The ruling says her inaction allowed others to exploit the policy for personal gains, resulting in violations under Section 157 of the Criminal Code and the 1999 constitution's section on corruption prevention and suppression.
Judge Pisol was the only judge who ruled in her favour. He said there was no evidence to show she assisted a company found to have unlawfully gained benefits from the discharge of the state grain. He also noted there was no evidence which showed Yingluck had a motive or intention to cause damage to others or commit malfeasance to seek benefits for herself or others.
His reasoning simply cites the basic rule of law applicable to all of us, the principle that ensures a fair and legally sound justice system for every one, not just politicians.
Many of you might disagree, shrug and say, "So what?" and ask, "Shouldn't Yingluck be held responsible for the fake rice deal?"
Indeed, she should be held responsible -- politically.
She should have resigned once the allegations over the fake deal came to light. But we can hardly expect such a dignified act from Thai ministers or prime ministers including unelected ones.
The parliament then could impeach her from office. But we cannot expect much either from our lawmakers who usually put the interest of their own party ahead of everything. So what's wrong with using the judicial process and the criminal law?
The thing is it doesn't hurt if we look at the case closely, and put away political biases or personal hatred of politicians, and try to understand whether it is a matter of straightforward law enforcement or the exploration of "the miracle of law", the term infamously used by Deputy Prime Minister Wissanu Krea-ngam when he mentioned the government's pursuit of tax cases against the Shinawatra family over the sale of Shin Corp shares more than a decade ago.
In order to right the wrong, to keep executives in public office accountable for their actions and if need be put them in prison, should we compromise the rule of law?
"Intention" is also cited in the Supreme Court's ruling in August in a criminal case on the state's fatal dispersal of yellow-shirt People's Alliance for Democracy protesters in 2008.
The ruling acquitted former premier Somchai Wongsawat and another three defendants including then national police chief Pol Gen Patcharawat Wongsuwon, a younger brother of Deputy Prime Minister Prawit Wongsuwon, of malfeasance charges.
One of the key reasons for the acquittal is a lack of intention in causing the fatalities. The defendants did not aim for or expect troops to hurt the protesters, according to the verdict. Such reasoning is similar to what judge Pisol outlined in the Yingluck case.
In the post-2006 coup, I sought an explanation from a number of legal experts on how much we can use Section 157 on malfeasance as a legal basis to criminally prosecute government members for "corruption" allegedly derived from their policy implementation and oversight, at a time when the number of criminal cases against those from the Shinawatra's political camp had started to rise.
Their view was that to put someone in prison over corruption, you need to have solid evidence as to how they benefited from their actions, and the evidence should leave no room for doubt or questioning. There also needs to be a clear line that separates administrative wrongdoing or mismanagement from corruption.
After this point, it remains to be seen whether the Yingluck case will set a precedent for whether prime ministers and ministers, as well as other high-level holders of public office, should be held responsible and criminally punished for whatever irregularities happened under their radar.
For example, what will happen in the latest scandal involving the speed gun procurement, signed off by Interior Minister Anupong Paojinda and recently approved by the cabinet? There have been allegations that the devices are excessively overpriced. Since the media and activists have raised the issue, shouldn't Gen Anupong and the cabinet scrap the deal?
And if there is any probe into the case and its findings show that someone benefited from it, but not cabinet members, shouldn't Gen Anupong be prosecuted for not calling off the deal? I would say no. He should instead resign from the job to show political responsibility if he had no hand in it.
The government's effort to demand compensation from Yingluck over losses incurred by the scheme is also questionable.
How often have we seized assets of government members for their spending on public policies when they did not personally benefit from it?
The Yingluck case reminds me of what is happening in Cambodia where the opposition leader of the Cambodia National Rescue Party, Kem Sokha, has been charged with treason for saying he wanted to bring about political change in his country.
Cambodia's justice process seems to run on baseless but casual assumptions in determining how his words can be translated into treason.
I only hope that our rule of law and the justice process will not go down the same path.
