Tuesday, February 23, 2010

A summary of Dr Thaksin Shinawatra’s defence in the Supreme Court in the case to confiscate his assets

Police Colonel Thaksin Shinawatra was charged with possession of extraordinary wealth. The Attorney-General accused him of acquiring such wealth by malpractice. He claimed that Dr Thaksin used his position as Prime Minister to issue orders and regulations to favor Shin Corporation. So, the Attorney-General submitted, all the money that Dr Thaksin received from selling his shares in Shin Corp was extraordinary wealth and illegal. He requested the court to confiscate Bt76,622 million.

Such accusation raised two principal issues:

1) Dr Thaksin and his spouse were accused of owning the remaining shares of Shin Crop during the Thaksin administration even though the laws clearly prohibited any politician and his spouse from being shareholders of any company receiving concession from the government. It was also claimed that the sale of the shares by Dr Thaksin and his wife to their children and other family members was not genuine and merely a scheme to disguise his and his wife’s ownership of the shares. This skepticism arose as the Asset Scrutiny Committee (ASC) and the Attorney-General noticed that the sale price of the shares was below the market price. In addition, the promissory note from the buyers contained no specific time limit or interest rate.

2) It was alleged that all the money, Bt76,621,603,601.05 in total, that Dr Thaksin’s children and relatives received from the sale of his shares in Shin Corp on the stock market was wealth acquired by malpractice. The Attorney-General claimed that Dr Thaksin used his position as Prime Minister to issue instructions and regulations to create conditions favourable to Shin Corp. So, according to the Organic Law on counter corruption B.E.2542, such money was considered extraordinary wealth.

The accusations were untrue. The charges were purely products of political conflicts that resulted from the military coup led by General Sonthi Boonyaratakalin. On September 19, 2006, the military overthrew the elected government led by Prime Minister Thaksin. The coup leader tried to justify the military’s unlawful acts to the Thai people giving four reasons:

  1. The Thaksin government instigated divisions among the people.
  2. The Thaksin government was not running the government effectively. It was unable to curb malpractice and encouraged corruption. The government also utilized its power to benefit themselves and their cliques.
  3. The independent state agencies were dominated and interfered with preventing them from exercising their power to monitor the government’s abuse of power.
  4. The practice of Thaksin government on many occasions was nearly an act of lese majeste.

In order to justify the accusations, the coup leaders set up a group of people called the Asset Scrutiny Committee (ASC). The role of ASC was to investigate, accuse and prosecute Dr Thaksin and his colleagues in the government. ASC was set up even though the National Anti-Corruption Commission (NACC) already existed as part of judicial system for the purpose of investigating and punishing politicians and government officers who were directly or indirectly involved in corruption. ASC’s interrogation and investigation procedures were unlawful. ASC listened only to witnesses preferred by the accuser and selected only material offered by the accuser. The accused was deprived of the right to have his lawyer during the interrogation and investigation. ASC indicted Dr Thaksin on a numbers of charges. The role of ASC in the investigation of Dr Thaksin was not to find out the truth. Its main purpose was to, by whatever means, find some fault or other with Dr Thaksin and to justify the military’s reasons for overthrowing an elected and legitimate government. The coup leaders intentionally selected ASC members from those who had beliefs, ideas and political ideology opposed to those held by Dr Thaksin, and were antagonistic to him. Mr Klanarong Jantuk, Mr Kaewsan Atipoti and Mr Banjerd Singkaneti were the members of ASC and they had had conflicts with Dr Thaksin. Before the coup, they had publicly called on Dr Thaksin to resign from the premiership. They had accused him of malpractice and corruption. They even participated in several rallies of People Alliance for Democracy (PAD). One would expect members of ASC who are going to interrogate and investigate anyone must be people not in conflict with the accused. When Dr Thaksin objected to the above three men’s membership of ASC, his plea was flatly rejected.

Moreover, the investigating procedures employed by ASC did not conform to international rules of law. ASC deprived the right of the accused to examine the material witnesses. It did not allow any lawyer for family members of the accused during the interrogation. This act of ASC was a violation of the basic right of the accused in a trial procedure stipulated in the Constitution. Some ASC members informed the press about issues concerning the accused every other day, thus perpetuating in the minds of the public the idea that the accused had committed the crime. Even before the investigation was completed ASC’s propaganda declared that Dr Thaksin had done wrong. Such improper conduct of ASC ran counter to the rules of law and was absolutely unjustified.

All charges and accusations of ASC were groundless. The reasons for supporting the case were subjective. Official facts and figures were deleted from the case. The procedures followed to prosecute ran counter to Thai and international legal principles.

Therefore, the case against Dr Thaksin was illegal and unjust. It did not conform to the general will of the Organic Law on Criminal Procedure for Persons Holding Political Position AD 2542, Article 5.

Prior to the filing of charges against Dr Thaksin, the Attorney-General had said that the ASC file was incomplete and he could not prosecute the accused because the contents of the file could not demonstrate the quantity of extraordinary wealth earned by Dr Thaksin. ASC could not figure out the amount of wealth that Dr Thaksin and his family earned before he took the office, the amount he earned after he become prime minister and the amount of wealth he earned by abusing the prime minister’s authority. ASC claimed that all wealth (in the form of total money deposits) that belonged to Dr Thaksin and his family was the product of his abuse of power. This is a sheer fabrication, not based on any principle of law, and totally unreasonable. After the case went to the National Anti-Corruption Commission, a joint commission between NACC and the Attorney-General’s Chambers was formed. However, the mistakes and incorrectness of the file had remained. So, the case was void and invalid because it was against Article 11 of the Organic Law on Criminal Procedure for Persons Holding Political Position. The joint commission could not correct the case because there was no ground to charge the accused. However, NACC insisted on its position to charge Dr Thaksin and the AG had to bend to the pressure and file the charges. The prosecution was therefore void and invalid, based on ulterior motive and counter to the rule of law.

As a cause of the case involved the shares of Shin Corporation, it is necessary to recall the start of Shin Corp, its establishment, its business operation as well as Dr Thaksin’s and his family members’ holding of shares. Moreover, it is worthwhile to mention Dr Thaksin’s and his spouse’s selling and transferring of shares, together with all the related facts and matters of law:

1. Shin Corp was founded by Dr Thaksin, his wife and Bhanapot Damapong in 1983. Its objective was to enter the telecom business. Dr Thaksin and his wife were the principal shareholders. Because telecom business had been a necessary service for the changing world, Shin Corp became a successful company. The company was reshaped and restructured many times resulting in the present Shin Corp.

With his devotion, industriousness and smart management style, Dr Thaksin had accelerated the growth of his company to international standards. Shin Corp was listed on the Security Exchange of Thailand (SET) in 1990. Dr Thaksin and his wife owned 48.75 percent of total shares at the time of listing. When new capital was raised, the Shinawatra family kept the proportion of its share at 48.75 percent. On June 11, 1999, the family sold some of its shares to Ample Rich Company. On August 1, 2000, Dr Thaksin and his wife transferred all their shares to Mr Panthongtae Shinawatra, Miss Yingluck Shinawatra and Mr Bhanapot Damapong. All three are members of the Shinawatra family. The transaction was completed before Febuary 9, 2001, the day Dr Thaksin became Prime Minister. The facts show that the shares that Dr Thaksin and his wife had sold and transferred were their family assets. The Shinawatra family owned the assets from the first day when the company was listed on SET. They earned the shares by doing business legally, openly and honestly. The accused’s relatives then sold the shares to Cedar Holdings and Aspen Holdings of Temasek Group of Singapore at the price of Bt73,271,200,910. The transaction was done through SET. The proceeds thus rightfully belonged to the Shinawatra family.

2. Another important issue that should be understood is that the shares of Shin Corp always had a value of their own, like all other assets.

We could not accept the argument of the joint commission that “Though the Shin Corp shares had their own value, as long as they are not sold or transformed into cash, the shares could lose their values and prices because normally share prices fluctuate all the time. During his administration the accused had abused his power and maneuvered by all means to increase the price of the share. Then, he sold and cashed the shares on January 23, 2006. The sum of money the accused received from this transaction, therefore, was an extraordinary wealth as it was the result of the abuse of power. The Joint Commission of NACC and AG, therefore hold that the accused had no asset prior to his assuming the post of Prime Minister.”

The adjudication of the Joint Commission that the shares of Shin Corp were not assets and had no value or price before Dr Thaksin became Prime Minister is totally unacceptable. In fact, after Shin Corp was listed on the stock exchange, its business had expanded rapidly, especially its telecom wing. Telecom is a necessary modern business that caters to people’s and state’s interests. Any investor would anticipate that Shin Corp has not only a strong foundation but also a prosperous future. Mobile phone and satellite are particularly necessary for the present day and future communication. The price of the Shin Corp shares as well as the volume of transactions on SET kept increasing. That was in keeping with the rise of SET Index and GDP growth.

On the day Shin Corp was listed on SET, its share, with a par value of Bt10, closed at Bt438. The SET Index was at 862.71

In 1993, the SET Index peaked at 1496.71. Shin Corp shares changed hands at Bt1,426. If Dr Thaksin and his wife had sold all their family shares then, they would have reaped Bt200,000 million.

On September 1, 2000, the day the accused sold and transferred the shares to his son, daughters and other family members, the SET Index was 310.73, the price of Shin Bt178. If Dr Thaksin and his wife had sold all their family shares on that day, he would have cashed Bt26,481,770,220.

On February 7, 2001, the last trading day before Dr Thaksin became Prime Minister, the SET Index was 327.51 and the price of Shin Bt214. If Dr Thaksin and his family had sold all their shares on that day, they would have reaped Bt31,837,638,568.

All such data confirmed the value of Shin Corp shares well before Dr Thaksin became prime minister. However, the joint commission held that he had no original assets. Such a stand is groundless, unreasonable, unacceptable, unjust and unlawful. It shows that the joint commission’s intent and exercise of discretion were irrational. This was totally illegal and should negate the entire case.

3. Telecom business needs a huge investment and continuous expansion. Setting up a mobile telephone network and launching a satellite into the orbit cost billions of baht. Official data that could easily be tracked show that since the first day of its establishment, Shin Corp had paid taxes and rights fees to the state of Thailand at approximately Bt200 billions. Dr Thaksin and his family had paid all taxes in time and at the rate required by law. As for taxes, Shin Corp and Dr Thaksin had paid taxes, both corporate and personal, of more than Bt3 billions. Therefore, the selling and transferring the shares of Shin Corp at the value of Bt73,271,200,910 is normal, reasonable and rightful. This was neither extraordinary wealth nor was it acquired through the commission of an offence.

The service expansion caused Shin Corp to demand more capital. Dr Thaksin and his wife did keep buying shares to keep their family’s shareholding at the same level. In 1999, Shin Corp increased its capital to Bt5,000 million. Dr Thaksin owned 65,840,000 shares, while his wife owned 69,300,000 shares. This is truly a proof that the asset was original. It was not acquired through the commission of an offence. It was not an additional asset that Dr Thaksin had reaped after he assumed the office of Prime Minister. It had its own value, and its price fluctuated according to the market along with SET Index. Dr Thaksin and his family owned the Shin Corp shares openly and everyone in Thailand recognized this.

4. There was an accusation that Dr Thaksin employed the Ample Rich Company to conceal his assets. This is completely untrue. Ample Rich was founded in June 1999, before the general election in Thailand in 2001, and before Dr Thaksin became Prime Minister. The founding of Ample Rich was a normal business practice. As the management of the Shin Corp perceived that telecom business was quite important to Thailand and its people and needed a huge amount of investment, it was necessary to open a channel to mobilize foreign investors. The company management, therefore, decided to list Shin Corp on Nasdaq, New York. Ample Rich was established to hold some portion of shares of Shin Corp and to trade on Nasdaq.

Ample Rich was a company registered in British Virgin Island. A lot of business corporations that intend to expand their operations internationally prefer to register companies in this territory. Ample Rich was openly and legally registered and had informed SEC of its business. Shin Corp had informed SEC that it had transferred 32.92 million shares to Ample Rich at par in order to prepare to list Shin Corp on Nasdaq. This was not a concealed act. How could a listed company conceal its operation by informing the authority of what it had done? However, with the change in the international financial environment, the management of Shin Corp scrapped its plan to list its shares on Nasdaq. Before Dr Thaksin became Prime minister, he transferred the shares of Shin Corp in Ample Rich to his son and daughter at par. The Revenue Department did evaluate taxes due from both people in the transaction, and the sum was paid. The tax collection by the Revenue Department from the son and daughter of Dr Thaksin concerning the Shin Corp shares transferred from Ample Rich was recognized by SEC. The official act of the Revenue Department was nothing but a legal declaration to confirm that the son and daughter were the real owners of the shares. But when the case was filed, the Joint Commission claimed that this portion of the Shin Corp shares belonged to Dr Thaksin and accused him of concealment.

This illustrated the unprincipled behavior of the commission which based its verdicts solely on its preferences and not on valid grounds.

The 1,487,740,120 Shin Corp shares that were sold to Temasek belonged to Dr Thaksin’s family. Win Mark Co that had some portion of the Shin Corp shares did not sell its shares to any company. Therefore, Win Mark was not involved and is not related to the case at all.

5. The Asset Scrutiny Committee’s order to freeze the total sum of approximately Bt7.6 billion which was paid by Temasek to Dr Thaksin’s family as price for their Shin Corp shares was illegal and unreasonable. The Joint Commission’s subsequent charges against Dr Thaksin and his family and its request to the court to confiscate the total sum were equally unjust. The facts demonstrate clearly that the money did not come from state funds in any way and that there was no corruption. The money had been earned without contravening any law. On the contrary, it is clear that the money belonged to Dr Thaksin and his family and that it had been earned legally and openly. The asset was the product of hard work and risk-taking on the part of Dr Thaksin for almost two decades. There has never been any proof that any part of it had been accumulated through his involvement in politics.

Worse, the family members who owned the asset before its sale to Temasek were never politicians. Therefore, the Joint Commission’s accusation that the sum was the product of malfeasance and corruption is totally untrue. It is an insult to the family and is defamatory.

Such attacks emanated from a band of antagonistic politically-oriented people. Their real intention was to eliminate Dr Thaksin from Thai politics. The motives of these people were to undermine Dr Thaksin’s prestige and subvert the trust, faith and love which a number of Thai people had for him. Dr Thaksin’s family members sold their own asset to Temasek, but the politically motivated group falsely accused Dr Thaksin of selling the national assets. Shin Corp was an operator of telecom business, it was not an owner. To sell the shares of Shin Corp was to change the management. All rights of telecom business, recognized by international community, still belong to Thailand.

Facts and legal issues that involve shareholding and the abuse of Prime Ministerial authority to facilitate the interests of Shin Corp:

1. Dr Thaksin and his wife did not employ anyone to be their proxy to hold the shares of Shin Corp on their behalf.

Dr Thaksin was the owner of 65,840,000 shares of Shin Corp. His wife was the owner of 69,300,000 shares. Both had sold all their shares in 2000. The buyers had paid the sum due to them. All the material witnesses confirmed this. The transaction was recorded at the Revenue Department, SEC, NACC and all banks and officials concerned.

The selling and transferring of the shares were done in good faith, open, and known to the public. The buyers bought the shares to legally trade on SET. The new owners of the shares, whether they were son, daughter or other relatives of Dr Thaksin, had to pay taxes concerning the ownership of the shares, which they did. Therefore, the share transaction was real and genuine and was not a concealed act.

The accusation of ASC and the Attorney-General was groundless with no supporting material witnesses. All that they called “material witness” was a piece of doubt and speculation. ASC and the Attorney-General proposed to the court that the transaction was at an abnormally low price. Terms and conditions of payment were different from normal business. ASC and the A-G stated that Dr Thaksin and his wife asked for payment by undated promissory note and without interest. Then ASC and the A-G came to the conclusion that it was a concealed act. The presumption of ASC and the A-G was wrong from beginning to the end.

It must be noted that this transaction was between parents and children. ASC could not hold that a transaction between relatives with blood ties must be at par with a general business transaction.

If Dr Thaksin and his wife prefer to gratuitously transfer any shares to their children, it can be done and is accepted by law and custom. According to Thai law, a transfer of assets between parents and children could be done without any payment. Why ASC had to bother to consider the price and terms of payment of such a transaction? This is not the essence of the case.

However, the transfer of the shares in this instance was not entirely free of charge. Dr Thaksin and his wife wanted their children to learn business lessons. All business needs investment. There will always be a cost, legal binding and responsibility. That was why they both sold their shares at par.

Achievement in running a business requires dedication. Otherwise, it will bring failure and cause hardship to all stakeholders. Dr Thaksin grasped this idea and applied it to running the country. When he implemented the policy of “Baht 30 cure all”, he vividly informed the Thai people that the government as well as the people must be responsible to the country together. This was his way of life and he did not exempt his children from it.

The transaction at par between parents and children is normal, legal and rightful. But ASC did not understand and did not accept. Nevertheless, ASC’s accusation is groundless.

Transferring ownership of their shares to anyone was the sole right of Dr Thaksin and his wife, and nobody could obstruct or forbid them from doing so. After transferring the shares to their children and their relatives, Dr Thaksin and his wife were no longer involved with Shin Corp business.

2. The accusation that Dr Thaksin possessed extraordinary wealth was untrue and baseless. It was wrong adjudication.

The filing of the Joint Commission to confiscate the assets of Dr Thaksin and his wife was contradictory to the essence of law.

(a) The asset that the Joint Commission asked to confiscate did not belong to any politician. Dr Thaksin and his wife were not the owners of the controversial asset. The money was the sale proceeds from the disposal of the Shin shares and was in the bank in the name of its owners. No money was ever transferred out of this account. It was in the same bank, in the same account from the day of share transaction in January 2006 till the military coup overthrew Thaksin government. The account was untouched for one year and five months before ASC ordered the freeze.

(b) Beside, the Joint Commission had no material witness to prove who was the proxy of Dr Thaksin and his wife. There was no proof that the transferring of shares was a concealed act.

Moreover, during the case, ASC argued that the 69,300,000 shares of Shin Corp belonged to Dr Thaksin’s spouse. Thus it accepted that these shares did not belong to a politician, as Dr Thaksin’s spouse was not a politician. NACC and the A-G cannot request to confiscate the asset of Dr Thaksin’s wife, as the law does not provide for that.

Even of the number of shares that ASC claimed that belonged to Dr Thaksin, half of them must belong to his wife according to the civil code, which means that half did not belong to a politician. It also means the Joint Commission cannot request their confiscation.

What the Joint Commission claimed to be Dr Thaksin’s asset did not come from the abuse of power. The Commission’s submission never pinpointed how Dr Thaksin abused his power. It was not able to offer any evidence as to how he exerted his power to get a bribe, in exchange for what or how much money he collected. No material witness ever supported the claim of the accusers. The Commission’s submission could only express a doubt.

The claimed asset was not extraordinary wealth, but was ordinarily earned. The asset that Dr Thaksin owned was his wealth that he deserved and owned before he took office as Prime Minister. The Shin share transaction was not concealed but open through the SET. The sum paid to the owners of shares had come from legal sources and rationally paid for productive shares. All was explainable. ASC and the Joint Commission had no ground to claim that the wealth was extraordinary according to law.

Furthermore, the amount of the original wealth of Dr Thaksin, his wife and their children had already been informed to NACC when he was Prime Minister for the first term in 2001. The sum he notified the NACC at that time was Bt15,124 million. The account he had shown did not related to Shin Corp at all. It was shown that Dr Thaksin did not own any shares in Shin Corp since 2000.

Before 2000, adding up all the value of the Shin shares held by the Shinawatra and Damapong family would result in a total of Bt31,838 million. Together with Dr Thaksin’s non-Shin assets, the total figure in 2000 would have been Bt46,962 million. That wealth was by no means extraordinarily earned. All assets were the product of diligence and hard work for almost two decades. It was not at all related to the post of prime minister. Since they were proved to be the original wealth, how could the Joint Commission ask to confiscate them?

A sum of Bt6,899 million was the dividend. This sum was also requested by the Joint Commission to be confiscated. Dividend is normal business practice. All healthy companies have to pay dividend to their shareholders regularly. It is the most attractive motivation of the capitalist system.

Price fluctuation is normal for all listed shares. Shin shares had fluctuated in the same way as the SET Index and in keeping with economic conditions in the country. It was in no way abnormal. It was impossible that Prime Minister Thaksin could manipulate the price of Shin shares. The accusation of NACC and the A-G was therefore irrational.

There is no legal foundation to support the case.

Dr Thaksin had never abused his power to benefit his own interests or those of his cronies.

ASC and the Joint Commission accused Dr Thaksin of abusing his power to facilitate Shin Corp and its affiliated companies. The accusation is absolutely untrue. It has been proved that during the entire period of his time as prime minister, he had devoted his physical and mental capability to running the country with honesty. Benefits and interests of Thailand and her people were the most important goals of his cabinets. His government’s policies and policy implementation conformed to the Constitution and the laws. All policies he implemented were openly stated in Parliament and endorsed by Parliament. The policies of “30 Baht cures all”, OTOP, the scholarship programme, the Village Fund, the early repaying of debt to IMF were recognized as outstanding achievements. These policies were warmly accepted by Thai people. Even when an opposition party had an opportunity to run the country, it kept implementing these policies without hesitation. Managing Thailand was not the sole responsibility of Prime Minister; all policies and policy implementation must be agreed upon and approved by the Cabinet. Every ministry was under the supervision of a minister. Therefore, the accusation of ASC, NACC and A-G that Dr Thaksin abused his power to facilitate his cronies and his own interests was absolute nonsense.

The following issues should be further elaborated:

1. The alteration of concession fee to excise tax:

The Excise Tax Amendment BE 2546 and the Cabinet resolution to deduct excise tax out of concession fee were by virtue of the operation of laws. The Constitution Court had ruled in favour of the two acts. That ruling was binding on all authorities and organizations, including ASC, NACC and the A-G. It said that the three organizations had no veto power to overrule such ruling. To put the blame on Dr Thaksin for this is not in accordance with laws.

The issuing of the law concerning excise tax did not damage the state interest. All mobile phone operators had to pay the concession fees to TOT and CAT. TOT and CAT will deduct a portion of the fee for their management costs and hand the rest over to the state. As for the excise tax, it will go directly to the government without any deduction. When TOT and CAT were privatized, dividends for their shareholders were deducted from the fees. To change the concession fee to be excise tax was reasonable and benefitted the state. ASC, NACC and the A-G claimed that the alteration from concession fee to excise tax was to facilitate AIS, an affiliate of Shin Corp. The fact is the cost to AIS remained the same. No company gained out of the alteration, the state only collected more.

2. The alteration of contract between TOT and AIS, to adjust the proportion of revenue sharing for prepaid mobile phone system:

The original contract between TOT and AIS concerning revenue sharing was based on the postpaid system. Generally speaking, the AIS customers had to pay Bt500 monthly at an air time fee of Bt3 per minute. The revenue sharing was on a graduated scale of 15, 20, 25, and 30 percent. When a new service of prepaid was introduced, both sides had to review the contract, since it had never been envisaged in the original contract. They settled for an agreement. The material witnesses for this were the minutes of the Board of TOT, and statement of TOT officers. All of this was known to ASC.

The prepaid revenue sharing scheme between TOT and AIS was at a flat rate of 20% with attached conditions, such as earlier date of payment, a discount rate (from the postpaid agreement) that must go to the customers, and that AIS must pay VAT by itself. The additional condition was not applied to AIS’s competitors.

The Joint Commission claimed that this agreement was illegal. However, the board of the State Council had already adjudicated the additional contract between AIS and TOT (recorded as a finalized issue no.291/2550). The Joint Commission could not revoke this issue again, because it had to do with interpretation of the law and the issue had been adjudicated by the State Council.

3. The contract amendment on mobile telephone roaming and adjustment of the roaming cost:

If roaming was not provided, both AIS and TOT would lose revenue. Hence the agreement on roaming between the two parties, in full conformity with the Telecommunications Act BE 2544.

This agreement provided for AIS to deduct the roaming fee out of the revenue sharing. It was reasonable and in no way contradictory to the terms of the original agreement. It was known that TOT would ultimately benefit from the additional profits brought in by roaming. The roaming structure that AIS agreed with TOT was similar to those that AIS had agreed with other international telephone companies. So, the agreement with TOT was reasonable and justified.

AIS did fully comply with terms and conditions in the agreement with TOT. From the first day of agreement, AIS has been constructing and transferring networks to TOT. The construction cost so far amounted to Bt200,000 million. AIS networks now cover the whole country. New networks are still under construction. The accusation against AIS on this matter was therefore totally unjustified.

4. The “misconduct” of supporting Shin Satellite Corp, an affiliate of Shin Corp:

The approval to utilize iPSTAR was under the original agreement between Ministry of Transport and Shin Corp. It was not a new project. The authority concerned had approved iPSTAR to be used as a reserve and support for THAICOM 3. Its quality was better and its technology more advanced.

The approval of the authority concerned that allowed Shin Satellite to redeem leasing fee to service the tenants was in the terms of agreement. Shin Sat had a duty to provide a guaranteed service to its tenants. iPSTAR was there to replace THAICOM 3 in an emergency.

Reducing the proportion of shareholding of Shin Corp in Shin Satellite from 51% to 40% was not subversive to Thailand’s security. According to the agreement, whenever the satellite was launched into space, the ownership of satellite was changed to the state immediately. Reducing the proportion of Shin Corp’s shareholding in Shin Sat did not lessen the power to manage Shin Sat. With 40% holding, Shin Corp was still the dominant shareholder. The argument to find fault with this arrangement was irrational.

5. The Thaksin government’s endorsement of loan from EXIM Bank to the Government of Myanmar to buy service from Shin Satellite:

The Myanmar deal of EXIM bank was in the framework of Bagan Declaration and ACMECS (Ayerawady-Chao Phraya–Mekong Economic Cooperation Strategy) and the accord between Thailand and Myanmar. It was based on a good relationship between Thailand and its neighbouring country. So, it was just a policy-related loan. When EXIM Bank approved the loan, the Cabinet reduced the interest rate for the government of Myanmar. This conformed to laws that governed EXIM bank. At the same time, it was an exercise in foreign policy. Decision making on the deal was not based entirely on business considerations alone. It had security, social, economic and other implications. The timely assistance the Thaksin government rendered to Myanmar government resulted in another deal: PTT, the petroleum investment arm of Thailand, won a concession in gas exploration and exploitation in the gulf of Mataban. The concession was worth billions of baht. The reduction of interest by EXIM bank of Bt90 million had returned a huge benefit for Thailand. At the same time, the friendly gesture of Thai government lessened the tension in the relationship between the two countries. To evaluate only one side of a deal with a foreign country without comprehensive appraisal of all considerations is wrong.

Besides, the spending of the loan was entirely at the discretion of Myanmar government. It was impossible for the accused, Shin Sat, or any Thai company to force the Myanmar government to buy their goods and services. More importantly, the loan did not benefit Shin Sat as the contract Shin Sat was awarded was worth only Bt376 million, which was only 9.39% of the total loan. The business deal was done at a regular price without any special privilege. Moreover, EXIM’s loan was also used to do business with 16 other Thai companies, none of which was a source of income for the accused. Therefore, to allege EXIM bank had granted the loan to benefit Shin Sat is unjustified given that the government had been voluntarily doing business with the company since 1998. This corresponded with the government’s attempt to develop the telecommunication sector in the country. The contract on buying a satellite and related equipment was entered into well before Dr Thaksin formed the government. Furthermore, to unreasonably reject the request for the loan would have affected a friendly relationship between the two countries.

(6) Change in the proportion of telecommunication entrepreneurs’ shareholding as stipulated in the Entrepreneur Act (Volume 3) BE 2544.

Change in the proportion of shareholding of telecommunication entrepreneurs did not involve Shin Corp. According to law, telecommunication entrepreneurs in Thailand are TOT and CAT. AIS was only a joint operator of TOT. Since AIS and Shin Corp are not the telecommunication entrepreneurs, foreign shareholding in AIS and Shin Corp was not limited. To amend the act to facilitate the selling of Shin Corp shares was unnecessary.

Temasek Group did not require the act to be amended to buy Shin Corp shares.

Moreover, only Parliament can enact new laws or amend existing ones. Dr Thaksin as Prime Minister could not amend any law on his own. When the Parliament had endorsed the law, how could ASC accuse Dr Thaksin or his Cabinet of abusing his power to amend the law?

All the above facts and legal principles clearly demonstrate that Dr Thaksin and his wife did not own the 1,419,490,150 shares of the Shin Corp. Their children and relatives and other legal entities were not their proxies. Dr Thaksin did not abuse his power to benefit his cronies or himself. The wealth was not gained out of malpractice. He deserved the wealth he had and he has full right over it. The sum of Bt76,621,603,061.05 did not belong to Dr Thaksin and his wife. The sum did not belong to any politician or state officer. Therefore, the request to confiscate the sum is invalid.


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