How to write an honest majority opinion
August 10, 2001
It was quite fantastic for the eight associate justices
of the Constitution Court to have acquitted Prime Minister Thaksin Shinawatra
with a majority vote over his asset concealment case.
But now they are facing the tougher task of writing the
central ruling to justify their majority opinion. As they are debating
over how to put their controversial ruling into the written record, which
will last forever in the canon of Thai constitutional history, here is
how the ruling should be written:
“The case of National Counter Corruption Commission vs Thaksin that had
been argued before the Constitution Court bears no resemblance to any
other case since this Kingdom was founded more than seven hundred years
ago by Pho Khun Sri Indhrathit of the Ruang Dynasty. Without precedent,
it poses an immediate question as to whether the Court should base its
judiciary deliberation on constitutional law, or on political science,
or purely on herd instinct.
“Police Colonel Thaksin Shinawatra, who holds the highest executive office
of the land as prime minister, was accused of failing to fully disclose
his assets in 1997 as required by law. The National Counter Corruption
Commission argued that the defendant deliberately hid his assets in billions
by having his wealth transferred to nominees who, in this particular case,
were his domestic employees.
“The defendant argued that he was so rich that he could not count all
of his assets or locate their whereabouts, and that his wife, Pojamarn,
transferred, without his knowledge, some of his wealth to the nominees.
Using nominees is quite a common practice in the business world. The defendant
pleaded to having committed an “honest mistake” by failing to publicly
file all his assets and further argued he should not be impeached in office
because of a technical error. Besides, the assets had been accumulated
by sound business practices, not through corruption associated with political
“To base this highly emotional case on constitutional law would put the
country at the risk of a bitter political divide. Already the Kingdom
of Thailand has been equally divided into two camps: those would like
the Court to rule by law and those who would like the Court to rule “by
heart”. It should be noted that the defendant holds the high?est executive
office of the land, with a popular mandate from more than 11 million Thai
“The Court is of the opinion that as an institution, it should not cross
the boundary of the checks and balances system to tarnish the popularity
of the defendant by upsetting those 11 million Thai voters. At this point,
the Thai people still have high hopes in the defendant’s populist programmes,
which would improve the quality of their lives. Since the Court was not
voted upon by 11 million Thais, who are we to question the integrity of
“Moreover, if Thaksin were not available, who would be the next prime
minister? Our country is still reeling under an economic crisis. Impeaching
the prime minister would rob the country of loveable leadership at this
“It necessarily follows that ‘political science’, and not legal principles,
should prevail in this case, although the Court did use herd instinct
in its judgement process. In the old days, during the tenure of Dr Jitti
Tingsaphat as the president of the Supreme Court, most other associate
Supreme Court judges waited for his signal before they fol?lowed his lead
with their concurring or dissenting votes in complicated or difficult
cases. So herd instinct has always been part of the judicial tradition.
“Within the majority opinion, the justices have been divided over the
favourable ruling for the prime minister. Four justices originally viewed
that the case against the prime minister should not have been brought
up in the first place because it was not applicable to Article 295 of
the Constitution since the defendant had already left office when he filed
his assets. The NCCC messed up things by intruding into a personal affair
of the defendant. If a harsh message is not delivered against its conduct,
the next time the NCCC might video its targets while they are using bathroom.
“But the justices forgot that since they had voted to take up the case
as filed by the NCCC, they had admitted by default that the case was applicable
to Article 295.
“The other four justices view that the defendant did not intentionally
hide his assets. To reconcile any legal and political science differences,
the Court’s majority opinion rules that Thaksin did not intentionally
hide his assets. The four justices agree to backtrack on Article 295.
The defendant should continue to serve as prime minister over the next
four years or eight years, or 12 years, as rumoured.
“The Court’s ruling on the NCCC vs Thaksin is eight to seven in favour
of the defendant.[Amen.]”