จดหมายเปิดผนึก เรื่องโต้แย้งคัดค้าน และขอความเป็นธรรมในการโต้แย้งแสดงพยานหลักฐาน

13 October B.E. 2558 (2015)

Re: Objection to the Process and Request for Fair Treatment in regards to Additional Evidence

Attention: The Prime Minster (General Prayut Chan-o-Cha) and Minister of the Ministry of Finance

Reference:

(1) Order of the Ministry of Finance No. 448/2558 dated 3 April B.E. 2558 (2015) Re: Appointment of Tort Claims Investigation Committee

(2) Copy of the Criminal Lawsuit, the Supreme Court, Criminal Offense of Political Person Division, Black Case No. Or. Mor. 22/2558

(3) Letter of Miss Yingluck Shinawatra to the Minister of the Ministry of Finance on subject: Request for Fair Treatment and Objection to the decision of the NACC Committee ordering the Ministry of Finance to demand damages from the Rice Subsidy Scheme dated 24 February B.E. 2558

(4) Letter of Miss Yingluck Shinawatra to the Permanent Secretary of the Ministry of Finance on subject: Request for Fair Treatment and Objection to the NACC Committee ordering the Ministry of Finance to demand damages from the Rice Subsidy Scheme dated 24 February B.E. 2558

(5) Letter of Miss Yingluck Shinawatra to Dr. Visanu Krua-ngarm, the Deputy Prime Minster on subject: Request for Fair Treatment and Objection to the NACC Committee ordering the Ministry of Finance to demand damages from the Rice Subsidy Scheme dated 24 February B.E. 2558

(6) Letter of Miss Yingluck Shinawatra on subject of Providing Facts and Information on the Rice Subsidy Scheme for a period of 5 years from 2554/2555-2556-2557 to Mr. Jirachai Moonthongroy, Chairman of the Tort Liability Investigation Committee (and to the entire committee) dated 2 September 2558

(7) Letter of Miss Yingluck Shinawatra on the subject of Objection to the role and involvement and Request to Suspend further activity, to Mr. Jirachai Moonthongroy, Chairman of the Tort Liability Investigation Committee (and the entire committee) dated 2 September 2558

(8) Letter of Miss Yingluck Shinawatra to General Prayut Chan-o-cha on the subject of Objection to the Appointment of Tort Liability Investigation Committee dated 2 September 2558

(9) Letter of Miss Yingluck Shinawatra to Mr. Jirachai Moonthongroy, Chairman of the Tort Liability Investigation Committee on the subject of Request to make copy of evidence of the Tort Liability Committee and Request that all activities be suspended, dated 17 September 2558

(10) Letter of Miss Yingluck Shinawatra to General Prayut Chan-o-cha, the Prime Minister, requesting the cancellation of the Order made according to the Order of the Ministry of Finance No. 448/2558 regarding the appointment of the Tort Liability Investigation Committee and demand that the committee act in neutral, dated 17 September 2558.

(11) Letter of Miss Yingluck Shinawatra to Mr. Jirachai Moonthongroy, Chairman of the Tort Liability Investigation Committee, delivery the witness statement of relevant witnesses, dated 21 September 2558.

(12) Letter of Miss Yingluck Shinawatra to Mr. Jirachai Moonthongroy, Chairman of the Tort Liability Investigation Committee, requesting the Tort Liability Investigation Committee to allow the submission of facts and to counter various accusations, dated 21 September 2558.

Reference is made to Order of the Ministry of Finance No. 448/2558 dated 3 April 2558 appointing the Tort Liability Investigation Committee (as referred to in (1) above) claiming that the NACC issued decision to the Ministry of Finance to enforce myself and other persons to liable to any damages occurred under the Rice Subsidy Scheme of my government. Such Order of the NACC was made under Section 73/1 of the Counter Corruption Crime Act B.E. 2542 (as amended); and, further, the NACC claimed that the Ministry of Finance is the injured party in this case which were caused by action of various government officers; and such decision was made under the Regulation of the Office of the Prime Minister on the tort actions done by government officer B.E. 2539.

The Order of the Ministry of Finance No. 448/2558 (referred to in (1)) which you and Mr. Sommai Pasee (the then Minister of the Ministry of Finance) approved such Order claiming that it was done in accordance with the Tort Liability of Government Officer Act B.E. 2539. However, the said Order is unlawful which I have consistently objected (as referred to in (1)-(12)) and will continue to object especially since I am not government officer under the command of the Prime Minister nor the Minster of the Ministry of Finance. Furthermore, in your capacity as the Chairman of the Rice Management and Policy Committee expressed on many occasions negative attitudes and comments to the Rice Subsidy Scheme of my government. Therefore your role has been in a clear conflict of interest and bias to use the executive power to investigate the actions of the past government. Your actions have been and will be contrary to the rules of laws principle.

Further, the intention of the law is to apply in the case where government officer(s) committed a tort to third party or to the government office during his or her exercise of duty.

Therefore, the Tort Liability of Government Office Act cannot apply in my case since I was elected the Prime Minister with duty and power under Section 171 of the Constitution of the Kingdom of Thailand B.E. 2550. My government declared the Rice Subsidy Scheme as government’s policy to the parliament which, by nature, was the agricultural economic stimulus plan in the same manner as the Tapioca Subsidy Scheme. This kind of government policy must be held accountable politically, not as government officer with duty according to specific regulations. The Administrative Court does not have jurisdiction over government policy issue. Therefore, I cannot be held liable under the Tort Liability of Government Officer Act.

Furthermore, Section 4(1) of the Administrative Procedure Act B.E. 2539 clearly states that this Act shall not apply to “the Parliament and the Cabinet”; whereas Section 4(3) also clearly states that the Act shall neither apply to “any decision of the Prime Minister or the Minister regarding the policy”. Therefore, since the accusation made under the Order referred to in (1) was the implementation of the Rice Subsidy Scheme as the government policy, the Administrative Procedure Act cannot be applied. Pheu Thai Party’s main election campaign was the Rice Subsidy Scheme and myself, as the head of cabinet, declared the scheme to the parliament so I was bound to implement such government’s policy.

The actions taken by myself as the Prime Minister and as the Chairperson of the National Rice Policy Committee were a “general conduct” which is not the administrative nor executive action. The issue of the Order of the Ministry of Finance No. 48/2558 therefore was unlawful and shall not be enforced. The person approving such unlawful order shall be held liable.

Though such Order No. 448/2558 is unlawful and unenforceable, any further implementation shall not be made. I hereby oppose to any such continuing unlawful activity.

Further, since such Committee claimed that it has power and authority under the Regulation of the Office of the Prime Minister on Procedures for Tort Liability of Government Officer, under Section 15 of the said Regulations which the Investigation Committee are obliged to comply, states that “the Committee shall provide sufficient and fair opportunity to the relevant officer(s) to submit facts and evidence to support his/her claim.” The Committee did not comply with your instruction nor the Regulations since they rejected my request to submit additional witnesses and documents. Please refer to details in documents referred to in (1)-(12) above. I requested the Committee to investigate my witness which was unreasonably denied. The investigation was not made carefully and thoroughly. While your government announced to the public that the statute of limitation of this case is one and a half year so the rushing into conclusion by the Committee without allowing myself to submit my witnesses and evidence is unlawful. If you approve or endorse such unlawful decision, you will be held liable too.

The Order No. 448/2558 also cited that such Order was issued due to the criminal investigation by the NACC. Since the NACC has initiated criminal action against me in the Supreme Court; Criminal offence of political person division, the Committee shall not take any further action on the tort until there is a final court judgment which is normal procedure for criminal offence related tort claims. However, the Committee concluded the investigation before the criminal case is finalized. Such unlawful decision of the Committee will cause you liability.

I would like to insist that the implementation of the government’s policy by my government is not a crime and I shall not be held liable for tort. All the above facts and laws confirm that I did not commit any wrongdoing.

I request that you, as the Prime Minister, and together with the Minister of the Ministry of Finance kindly consider and concede that it is unlawful for the Committee to issue any order that I shall be held liable for the damages amount of five hundred billion Baht. Please be aware that it is unlawful to exercise under power under Section 57 of the Administrative Procedure Act as Dr. Visanu Krua-ngarm, the Deputy Prime Minister, announced publicly. If your government decide to pursue the unlawful choice as suggested by Dr. Visanu instead of filing a civil complaint as allowed by laws, it is not only illegal but unfair and selective standard. In the precedent case of former governor of Bank of Thailand, Mr. Ruengchai Marakanond, the government took legal action through civil complaint instead of using Section 57 of the Administrative Procedure Act.

With this letter, “I object to any action to use Section 57 of the Administrative Procedure Act as such action will be unlawful, unfair and double standard.”

I hereby
(1) object the Order No. 448/2558 and demand that I be treated with fairness by asking you to cancel the orders made under such Order and cancel all activities of such Committee.

(2) if the unlawful activity under (1) above continues, I demand you strictly and diligently supervise all actions of the Committee to fully comply with the relevant regulations and particularly, allowing opportunities to submit facts, evidence and witnesses.

Please review these matters appropriately.

Sincerely,
Yingluck Shinawatra


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