The Constitutional Court on, 21 February 2020, ruled to dissolve the Future Forward Party (“FFP”) on the grounds of accepting 2 loans from its party leader, Thanathorn Juangroongruangkit, in total 191.2 million baht.
The Court considered that the interests and penalties of the loan are not following the normal course of business or nature, therefore, believed that the loan was made to avoid the limitation of donation of 10 million baht per donor per year which is prohibited by Section 66 of the Organic Law on Political Parties. Receiving this money by FFP is considered as a violation of Section 72. The Election Commission (“ECT”) can submit the petition to dissolve the party according to Section 92.
Considering the Organic Law on Political Parties B.E. 2560, there are 7 sections involving with the FFP party dissolutions as follows:
- Section 62 – the sources of the revenue of the political parties;
- Section 66 – the limitation of donation of 10 million baht per donor per year;
- Section 72 – the prohibition of the political parties from receiving donations of money, assets or any other benefits which came from an illegitimate source.
- Section 92 – the Election Commission to submit the petition to the Constitutional Court to dissolve the party in case the political party violate Section 72 and other sections;
- Section 124 – the penalty of the donor who donates the money amount exceeding 10 million baht shall be the imprisonment for a term of not exceeding 5 years or to a fine of not exceeding 100,000 Bath, or to both and the revocation of the political right for five years.
- Section 125 – the penalty of the political party which received the donation in the amount exceeding 10 million baht shall be a fine of not exceeding 1,000,000 Baht and the revocation of the political rights of the party’s executive committees for 5 years. The amount of the donation considered to exceed legal limitation shall be confiscated to the Fund for Development of Political Parties;
- Section 126 – the penalty of individuals holding office in a political party which received the donation from the illegitimate source shall be imprisonment for a term of not exceeding 3 years or a fine of not exceeding 60,000 Bath, or both and the court may order the revocation period at its own discretion.
The Constitutional Court did not apply only one Section to rule the party dissolution and penalise the party’s executive committees. The main offence used base on the grounds of “receiving a donation of money which came from an illegitimate source” according to Section 72 below:
Section 72: No political party and individuals holding office in a political party shall receive the donation of money, assets or any other benefits if they know, or should have known, that it was illegally acquired, or if they have reasonable cause to suspect that it came from an illegitimate source.
An act considered to be an offence under Section 72 can be separated by the following elements:
1. political party and individuals holding office in a political party
2. receive the donation of money, assets or any other benefits
3. if they know, or should have known/ or if they have reasonable cause to suspect
4. it was illegally acquired/ or it came from an illegitimate source.
To decide whether the FFP is guilty under Section 72, these 4 elements of the facts must be contained together. Without one of these elements, the political party cannot be punished.
The first element: The political party is the FFP and the individuals holding office in a political party are the party’s executive committees. This element is complete and explicit.
The second element: “Receiving the donation” of money, assets or other benefits, must be interpreted in many layers.
The FFP presented the documents proving that a loan agreement is considered as the loan, not a donation, while ECT, the petitioner of this party dissolution, interpreted it as “concealed act” by pretending to have a loan to conceal a donation.
The Constitutional Court didn’t make an absolute decision whether, referring to the civil law, the loan is a concealed act and whether this loan agreement is considered as a loan or a donation. However, the Constitutional Court clarified that the loan from Thanathorn Juangroongrunagkit is considered as “any other benefits” to the party under Section 72 due to the fact that the interest rates and penalties in the loan agreements are not in the normal course of business and are not in the normal nature of the loans and debt repayment.
It can be seen that the Constitutional Court avoided pointing out that this loan agreement is considered as a concealed act for the donation of 191.2 million baht or not, instead considered the low-interest rates and penalties as a grant of “any other benefits” based on the interest rates which is less than usual only.
The third element: Regarding the term, “knowing or should have known” or “have reasonable cause to suspect”, the Constitutional Court did not make any decision on this issue. However, there should be no different points of view. Since a loan agreement is made between the party leader, Thanathorn, and the FFP directly, the party’s executive committees cannot deny that they were not aware of it. Also, the party’s executive committees have not rejected this issue before.
The fourth element: The money or any other benefits was illegally acquired or came from an illegitimate source.
On this point, the Constitutional Court explained that when combining any other benefits the FFP received from the loan with the money donated by Thanathorn to the party in 2019 in the amount of 8,500,000 baht, it is clear that this is considered as receiving donation of money, assets or any other benefits with a value exceeding 10 million baht per year which is prohibited under Section 66 paragraph two.
The Constitutional Court interpreted the term “any other benefits which were illegally acquired” as an important element of Section 72 by referring to Section 66 that it is the violation by means of the provision of more than 10 million baht. This interpretation is a misapplication of Section 72.
Section 66 No person shall donate the money, asset or any other benefits to the political party in excess of 10 million baht within a one-year period. In case the person is a juristic person, the donation of money, asset or any other benefits to the single or multiple political parties in excess of 5 million baht per year shall be notified to the meeting of shareholders at the next general meeting of shareholders after donation.
No political parties shall receive the donation of money, assets, or any other benefits which the value of it exceeds the amount in the first paragraph.
The term “illegally acquired” or “came from an illegitimate source” under Section 72, shall be considered based on the source of money “before” it was donated to a political party, not on the “manner” of the donation to the political parties. For example, if the money donated to a political party with its knowledge that it was obtained by a criminal offence of theft, robbery, misappropriation or fraud, in that case, it shall be considered misconduct under Section 72.
In the case of the dissolution of the FFP, the money and assets of Thanathorn did not appear to have been obtained illegally. When brought to the benefits of the FFP, it is not deemed as a money, assets or any other benefits that “Illegally acquired” or “came from an illegitimate source”. Meaning that the fourth element of offences according to Section 72 is missing. Section 72 cannot be invoked against the party to the case of loan agreements hereto.
If Thanathorn actually gives more than 10 million baht of benefits to the FFP, it will be in violation of Section 66 only. Those who violate Section 66 of the Organic Law on the Political Parties B.E. 2560 must be punished according to as written in Section 124 and 125. Despite giving such benefits over 10 million baht which in this case conducted in a wrong manner by offering interest rates and penalties lower than a normal practice, this money however does not mean it was “illegally obtained” or having “an illegitimate source” according to Section 82.
There is at least 3 concrete evidence showing that the application of Section 72 must be applied in the aforementioned meaning as follows:
First, refer to the decision of the Constitutional Court, in this case, the Constitutional Court considered that the provision of Section 72 stipulates the prohibition “in order to prevent political parties from being involved in money, assets or any other benefits which will make that political parties become participants or supporters or assistants in committing an offence resulting in the effect of confidence on the political party institutions of Thailand. This is an important measure to strengthen the political party institutions in Thailand to be an institution that is transparent and reliable to the people.”
The court has explained that the intention of Article 72 is to discourage the political parties to “participate” or “support” or “assist” in the offence. Meaning that Section 72 intends to keep the political parties away from “other offences” that may occur before the donation of money or assets or any other benefits. The purpose of this Section is not to prevent the political parties from committing an offence in terms of “manner” of receiving donations by the political parties themselves.
Second, Section 66 paragraph two is clearly written that the political parties cannot accept the donations of money or other benefits in excess of 10 million baht. If the lawmakers want to penalise those who receive the donations of money or any other benefits of more than 10 million baht to the party dissolution, it must be written in Section 92 (3) that the ECT has the power to submit a petition to the Constitutional Court to dissolve a political party that violates this Section 66 paragraph two. However, Section 92 (3) did not specify accordingly. It, therefore, can be seen that the ECT cannot submit the petition to the Constitutional Court to dissolve the political party on the grounds of the violation of Section 66, by receiving any other benefits more than 10 million baht.
In order to rule the dissolution of the FFP on the grounds of the violation of Section 66, paragraph two, the Constitutional Court linked it with Section 72. This is the use of Section 72 to overlap with the offence under Section 66 which is incorrect.
Third, there is a penalty for the violation of Section 66 mentioning in Section 124 and 125. The donors shall be subjected to the imprisonment for a term of not exceeding 5 years or to a fine of not exceeding 100,000 Bath, or to both and to the revocation of political rights for a period of 5 years. The political party which received the donation shall be subject to a fine of not exceeding 1,000,000 Bath and the court shall order revocation of political rights of the party’s executive committees for a period of 5 years.
Regarding the violation of Section 72, in addition to being subject to the party dissolution under Section 92 (3), there is still a penalty written in Section 126 for the party’s executive committees — the imprisonment not exceeding 3 years or fined not exceeding 60,000 baht, or both and the revocation of political rights for an indefinite period, meaning that the court may order the revocation period at its own discretion.
When there are different penalties of offences for the violation of Section 66 and Section 72, it can be seen that the two sections are written to be applied separately, not mutually. When the action of a political party is in violation of Section 66 paragraph two, it shall not be considered as an offence under section 72 anymore.
Therefore, it can be seen that the decision of the Constitutional Court by applying both Section 66 and Section 72 together and by including the “manner” of the acquisition of any other benefits to the terms “Illegally acquired” or “came from the illegitimate source”, is clearly a wrong interpretation of the law.
If Thanathon Juangroongruangkit donated money or providing other benefits to the FFP more than 10 million baht per year, it shall be contrary to Section 66. Thanathorn would be prosecuted under Section 124, while the FFP and other executive committees must be prosecuted under Section 125. These are the criminal cases and must be prosecuted before the Criminal Court, not a Constitutional Court. In addition, the conditions under Section 66 cannot be linked to Section 72, and be the reason for dissolving the FFP. This is because there is no penalty of dissolving the party for providing benefits exceeding 10 million baht according to Section 66.
