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 office.

“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 voters.

“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 the defendant?

“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 difficult time.

“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.]”

Thanong Khanthong