June 10, 2010

War on Drugs

The War on Drugs (2003) has often been used to pinpoint the authoritarian nature of the Thaksin era. During 2007, the coup sponsored government ordered an inquiry into the War on Drugs. That inquiry recommended further investigation, but the idea was dropped quietly after Samak and the People's Power Party came to power. My suspicion is that it was not just the Samak government that was happy to bin the recommendation. The inquiry and further investigation was not welcomed by bureaucrats , the military and police figures in all political camps because many across the political spectrum were part of the "accidental killing machine" that claimed over a thousand lives. Human rights abuses were not then colour-coded as politics is now, and thus just prosecution- consequent to any real inquiry - must be colour blind too.

The War on Drugs is now part of the political football of post-coup Thailand. Renewed interest in probing the event by the Aphisit government is clearly politically motivated to neutralize the international campaign currently being waged by Thaksin and his legal team to highlight human rights abuses during the April/May showdown.

I still consider the human rights abuses carried out during the War on Drugs to be the worst committed during the tenure of an elected government since Thailand liberalised in the 1980s, and below is what I have written about the events in my paper
Ambivalent About Rights.

Those who want to downplay this episode do no justice to their call for an end to double standards.

Let there also be open and independent investigations of October 1976, May 1992, the April and October 2004 killings in the South of Thailand, October 2008, April and May 2010. Appoint an international advisory committee to ensure non-partisan investigations. Allow history to be truly spoken, the present to escape mendacity, and the future to honour those murdered.

War on Drugs.
Section taken from Ambivalent About Rights paper to be published later this year.

An Accidental Killing Machine: The War on Drugs

In January 2003, the [Thaksin] government approved aggressive measures to address proliferating drug use, then at epidemic proportions. The government’s actions were presented as a response to a speech by King Bhumipol (2002) in which, using the term ‘war on drugs’ he commented on rising drug use. Privy Councilor Phichit Kunlawanit called on the government to use its majority to establish a special narcotics court, stating that ‘if we execute 60,000 the land will rise and our descendants will escape bad karma’ (Daily News 2003). The government sycophantically reported that it aimed to eradicate illicit drugs before the king’s birthday (Siamrat 2003a).

At a meeting of government officials in mid-January, Thaksin spoke of the necessity of eradicating drug traffickers as a matter of national security. Provincial governors would be responsible for coordinating the effort and failure to do so would result in removal from office. Nicholas Cheesman (2003 p. 30), from the Asian Legal Resource Centre, noted that financial incentives for the capture of drug suspects included rights to a proportion of seized property of drug traffickers by arresting officers, even if suspects were killed. Operating agencies were required to produce lists of suspects (effectively blacklists) to be used to measure efficiency in reaching targets formulated by the Ministry of Interior (Cheesman 2003 p. 29-31). Provincial governors were set targets of 25 per cent, 50 per cent and 75 per cent (originally 100 per cent) in February, March and April respectively. Exactly what targets? Officials were to report that action had been taken against suspects listed. Accounts differ, but it seems that over 70 000 names appeared on the competing lists of police and government departments. Actions to be reported included arrest, warning, communication to users and rehabilitation. But as the war got under way, it became obvious that results were being tallied in grotesque ways, with officials reporting the number of deaths not only to the government, but to the press.

In mid-February, the National Center for Combating Drugs, within the Interior Ministry, specified that in order to delete the name of drug traffickers, users and producers from lists, that is, in order to reach targets, the following criteria could be taken into account: ‘arrest, extrajudicial execution or death (for whatever reason)’ (see National Human Rights Commission 2003 p. 13). The Interior was informing officials in precise terms that the names of those being murdered could be struck off the list. By default, death as a measure of efficiency was given official sanction.

Initially, officials and the government gleefully reported the mounting death toll of ‘drug traffickers’ it said were being killed by drug networks in order to silence them, the so-called ‘cutting the link killings’ (khaa-tat-ton). Concern about deaths was casually brushed aside by various political and bureaucratic spokespersons, with reprimands not to care about the deaths of anti-social elements (Krungthepthurakit 2003a). Towards the end of February, in response to critics, the government sought to limit the publication of death tolls, perhaps fearful that its operational policy of counting deaths would potentially implicate it in human rights crimes in the future (Matichon 2003a). But targets remained in use. As the February deadline for targets approached, one newspaper columnist pithily advised travelers to steer clear of provinces that had performed poorly, for he expected a killing spree to make up the shortfall (Krungthepthurakit 2003b).

Estimates of deaths during the war on drugs range between 1200 and 4000. Ambiguity and uncertainly continued for several years because the Thaksin government refused to deliberate and investigate the matter. In early 2008, the Independent Committee for the Investigation, Study and Analysis of the Formulation and Implementation of Narcotic Suppression Policy (ICID 2008) issued a preliminary report. It noted the extraordinary rise in murder cases during the war on drugs. During the three months of the war’s duration, the rate of murder increased by 88 per cent. The ICID found that of the 2559 cases totaling 2873 deaths (from February to April), drug related cases accounted for 1187, totaling 1370 murders. In 29 cases suspects had been arrested, while 47 suspects were at large. Of the remaining 1111 cases, no perpetrators had been identified. In the remaining 1372 non-narcotic related cases, totaling 1449 deaths, 791 suspects had been identified or arrested, demonstrating that few resources were allocated to ‘drug’ murders. The ICID reported that of the extra-judicial executions in this period, 41 were drug related and 11 were for unidentified causes.

Many observers suspected collusion between corrupt police officers and mafia elements in the killing spree because ‘blacklists’ were leaked and deaths were often reported after suspects departed police stations. Even the government recognised that names on the blacklist may have appeared inappropriately as a result of defamation, misunderstanding or negligence (Thai Post 2003a). A failure to properly investigate the deaths was also common. In some instances, ill-equipped and trained doctors with no skills in autopsy were required to certify cause of death, with physical evidence compromised (Thai Post 2003b). As reported by Meryam Dabhoiwala (2003 p. 9):

According to Amnesty International, “Authorities are not permitting pathologists to perform autopsies and bullets are reportedly being removed from the corpses.” And according to Dr Pornthip Rojanasunan, acting director of the Forensic Science Institute, in more than half of the cases seen by her the drugs appeared to have been planted on the victims after their deaths—jammed in pockets at unnatural angles.

Government officials reported being pressured to perform or face punitive removal from posts. Speaking in parliament, Nipit Intrasombat (Democrat Party MP) lamented that most officials were incapable of challenging the targets:

Police in the provinces have asked me to tell you that the order is a sin, but Thai government officials, well, I don’t want to use the world evil, but they prefer to keep their position than their humanity… They have stated they need to be involved in the killings in order to maintain their position (Royal Thai Government 2003 p. 33)

Nipat launched an impassioned attack on the government, challenging the Interior Minister to make arrests in 50 per cent of the ‘drug’ murders. The minister responded that setting targets would lead to the arrest of scapegoats. To this Nipit riposted:

I asked the honorable minister to arrest 50% of those involved in the ‘cutting- the-link’ killings. He said he cannot, saying it would be equal to arresting scapegoats…and what of your 25% per month, are they scapegoats. Yes a lot! And in March another 25% and in April another are ordering the arrest of many scapegoats and many people die, and yet you are not brave enough to order the arrest of 50% [of those doing the killing] because you are afraid it will return to you, because you are the one who has ordered this policy
(Royal Thai Government 2003 p. 18-20).
The logic of the ‘accidental’ killing machine laid bare, the government defended its position.


Public intellectuals, the National Human Rights Commission (NHRC), the Democrat Party and independent senators, such as Kraisak Choonhaven and Chermsak Pintong, challenged the government. Critical coverage also appeared in newspapers. Critics charged the government with turning Thailand into a police state, decrying the fate of the liberal project. Chuan Leekpai, leader of the Democrat Party remonstrated:

Our country is governed by a democracy not a dictatorship or tyranny…It is true that in some cases…people have disgust towards drug traffickers because they are a source of much evil in society, but there is no exception to allow arbitrary processes above the law. Legal powers are capable of handing such people. Even though it may be slow…it is a guarantee for the innocent (Matichon 2003b).

The NHRC warned the government that while it was supportive of the attempt to eradicate drug trafficking, it would pursue its mandate. A number of listees having requested assistance, the NHRC called on the government to abandon use of blacklists. One commissioner took concerns of the mounting death toll to the United Nations and earned a rebuke from TRT politicians, who threatened him with impeachment. The NHRC responded:

Are we going forward or back to the dictatorships of the past? Use of state power must be transparent. It cannot be helped that the work of the National Human Rights Commission may offend feelings… ofr those who have a tendency to use power arbitrarily (Matichon 2003c).

The NHRC subsequently collected evidence of the killings for scores of bereaved families to support investigation into death and compensation. In the absence of proper police reports, it published and ciculated dozens of site reports of deaths, recording the circumstances of death and taking witness statements. Few have been acted on by the police.


Adamant that the killings were the natural outcome of bigger fish killing smaller fish to ‘cut the link’, the government barely addressed concerns. Recognising, however, significant opposition within parliament and by NGOs, in late February it established several committees to oversee agencies prosecuting the war. Strategy shifted to prompt property seizure and the death toll fell by half, arguably something of an achievement for the forces opposing the government, but also a statement of the limit of their influence. The government recognised that mistakes occurred, but it portrayed critics as playing into the hands of drug networks and questioned their ‘Thainess’ (Khomchatleuk 2003). Thaksin called those who took the issue to the UN pretentious, advising them not to be so ‘universal’ (Siamrat 2003b). A prominent government figure, Sanoh Thiengthong, rebutted ‘rights talks’:

[Regarding] those who oppose us from overseas, if our country or our society falls into ruin they will not step into our shoes and accept responsibility, they will condemn us [saying] that our society is not good to visit, that it is full of criminals and drugs… We cannot give rights to those who break the law if we wish to live together … we can only give them the right to go to prison (Baan Meuang 2003).

The government sought to shut down inquiry into the mounting deaths. It refused to meet with the NHRC and tried to halt a senate-sponsored meeting on the issue. It did nothing but window-dress the issue and proclaimed that abuses of authority would be examined.


Public opinion on the WOD was both supportive and distressed. In a poll of over 8000 respondents from 800 communities, 90 per cent expressed satisfaction with the WOD and yet 39 per cent expressed fear that they, or someone they knew, might fall victim to death squads (Suan Dusit Poll 2003). There was good reason for such fear. Stories circulated of self reporting drug suspects being killed on exiting police stations, yet police sent letters to listees stating that failure to report to the local police station meant their safety could not be guaranteed. Who, or what, could guarantee justice in these circumstances? The answer proffered by Thaksin was that he could.

In their indispensable study of Thaksin’s populism, Baker and Pasuk (2008) note the narrative of leadership/mass that emerged as Thaksin became more confident of his ability to directly communicate with an ‘informal mass’ through the media. He began to assert himself as a medium of the people, dangerously conflating his will with theirs. Thaksin sought to alleviate concerns about miscarriages of justice by emphasising the possibility of justice through his person. On several occasions he called on aggrieved people to deal directly with him, promising to use central agencies to scrutinise the behavior of officials. Noting that it was difficult to control the ‘natural’ killings of drug traffickers (the cutting-the link deaths) he stated that if deaths were ‘not natural’ there would be investigation, as ‘all people are under the law’. The very distinction between ‘natural’ and ‘unnatural’ killings, and the promise (undelivered) to provide justice to those killed ‘unnaturally’, was made meaningless by Thaksin’s most conflationary statement:

Whoever has been killed in this manner [unnaturally], their relatives may bring their grievance to the prime minister, because we have central [agencies] that can go down and ensure justice, but [I] believe that [the relatives] will not be so brave because today the majority of those killed have experience [in the drug trade] (Thai Post 2003c, my emphasis).

Thaksin reported that not even monks cared for such people and had refused to perform funeral rites (Matichon 2003d). And perhaps as a summation of the process of dehumanisation, the then Interior Minister sought to steal justice from the deceased by denying that they had been killed, suggesting that they had ‘expired’.

Of the many headlines that appeared during the WOD certain pathos attaches to one in particular, appearing in mid-February (Thai Post 2003c): “AN OFFERING TO THE WAR ON DRUGS: 352 CORSPES – STRESSED UBON GOVERNOR GOES TO HOSPITAL”. The article drew attention to the irrational processes underway by reference to ‘offerings’. For the bereaved relatives of the victims of the WOD, the experience of a rampaging bureaucracy armed with guns, trapping innocents in an accidental killing machine was traumatic, a modern equivalent of ancient sacrifice to ravenous but opaque gods. But these were gods with dreadfully contemporary names such as Security and Targets and Blacklist. How did Thailand’s ‘democratic’ system produce terrible human rights outcomes in the name of such gods? And why might it threaten to do so again? In 2008, Chalerm Yoobamrung, Interior Minister in the pro-Thaksin Samak government, threatened to reprise the war, saying 3000 to 4000 more deaths would be natural (Matichon 2008; The Nation 2008).

No one particular cause lies behind the Accidental Killing Machine; various factors are implicated, from the broadly historical to the temporally approximate. Proclivity to social order (Pasuk and Baker 2009 p. 158-167), bureaucratic laxity and ineptitude, ruthless determination for Killing Performance Indicators, sycophancy to monarchy and a desire to win approval, and social attitudes of distance to ‘others’, allowed the particular (populist justice) to triumph over the general law (citizenship). At times of social panic or mobilised missions of social solidarity, such as the WOD, the possibility for abuse intensifies because the seeds for hybrid and prerogative orders are already sprouting, a pathology that inheres in any unjust social order. To that unjust order we now turn. Its origins ‘naturally’ predate Thaksin and lie in the failure to resolve state form on the side of justice and wellbeing.

June 5, 2010

The Rule of Law in Thailand?

As legal authoritarianism reaches new heights in Thailand I post a section on law and rights from my paper Ambivalent About Rights: Accidental Killing Machine, Democracy and Coups d'tat, written last year.

If liberal conceptions of rights are to mean anything, they need legal sanction and protection. Thus the ambivalence of legal institutions to relations of power remains a central issue for human rights. Movements for rights are transitory and unless protection is institutionalised, happenstance prevails. The situation [in Thailand] looks bleak. Thai legal institutions have undermined the legitimacy of law, its ability to shape a just social order. These institutions have been, in general, willing accomplices in the raw pursuit of power by failing to abide by any dictate other than that of positive law and power. The role of jurists in the formation of various coup constitutions is notorious, as is the deliberately narrow reading of law that errs on the side of technicality. Moreover, the common observation that judgments can be bought does not augur well for the future. An examination of law in relation to constitutionality lays bare these nefarious features.

In a suggestive account of Thai law, Prasit notes how coups d’état have been accepted as a ‘law creating fact’ by the courts, thus legitimising illegal seizures of power (Prasit 2008 p. 35-36). Prasit notes the Thai judiciary embraced positivist international legal theory in the 1940s and 1950s. Such theory was concerned to make sense of new states and their respective legal positions. The international system of states required sovereign states as interlocutors. This being so, the forms of power assumed were secondary to who controlled the state. In legal terms, a coup d’état did not impact on the legal status of the state, a fact that was then internalised, strengthening existing law as power discourse (2008 p. 38-54). Influenced by positivist legal theory, where a sovereign command is law (and where that sovereignty is about effectiveness not legitimacy), Thai jurists actively collaborated with coup regimes to write law and accept the legal status of a coup government, a pattern that commenced in 1947 and which has persisted since, most recently in 2007. The contamination of law that follows from this disposition is axiomatic. The documentary excess of coup law (of which there are hundreds) lies stretched across the Thai legal landscape. Each instance of coup law has assailed the idea of law as a force for good at the highest level, even if at various lower levels committed jurists and advocates have attempted reform or alleviation. That most coupsters go unpunished for overthrowing a government and abrogating a constitution is a startling fact of law. It seems that the highest law is no higher than the person who overthrows it. On average, that is about five foot seven inches.

As Prasit argues, it is not that the judiciary has had no course of action in the face of an illegal assumption of power. The judiciary could resign, it could refuse to judge on political issues, or it could unambiguously rule a coup d’état illegal. Prasit, ever concrete, offers Section 113 of the Criminal Code as grounds for prosecution of coup leaders (2008 p. 62-70). The Criminal Code is largely spared suspension during states of exception occasioned by a coup d’etat. Section 113 describes as treason (punishable by execution or life imprisonment) the threat or use of force to support separatism, to overthrow the constitution, or to overthrow or obstruct the exercise legislative, executive or judicial power. Clearly a coup falls into this category of criminal activity, compelling the need for amnesty provisions. Section 113 has recently been invoked against the 2006 coup. In September 2009, a majority of judges in the Supreme Court's Criminal Division for Political Office Holders found against a former executive of the People’s Power Party in a case of asset concealment. A minority judge, however, ruled that no judgment could be made because the case had been mounted by forces who led the 2006 coup, an act that was against Section 113. The dissenting judge noted that to rule in the case would be to accept the illegal assumption of power by the coup group (Prachathai 4 November 2009). When dissent becomes mainstream, the law will have risen to challenging military assumptions of power and the transgression of rights such assumptions entail.

Prasit also raises the role of a monarch in protecting the constitution, drawing particular attention to the Spanish monarchy’s protection of the constitution. His discussion of European and Japanese examples of constitutional monarchy is clearly meant to inform Thai discussion on what position the Thai constitutional monarchy should take on the unconstitutional seizure of power. For the record, on two occasions in the 1980s, Bhumiphol made his opposition to a coup d’état very clear (and they failed), but did not do so publicly in 1976, 1977, 1991 and 2006.

Perhaps this suggests too bleak a prospect for Thai law, requiring that its stability be grounded in the actions of the crown or a stand-alone judiciary. More optimistically, in the post-coup struggle, the very purpose of law has now become a public debate. Opposing sides, with substantial support from a previously demobilised population, argue that double standards prevail in the courts. If historical struggles have a dialectical element, one may wonder if the selectivity on legal sanction evidenced in red and yellow discourses (each accusing the other of legal abuses) might cancel each other out, leaving the question of general law as a real possibility. This would entail something of a revolution, but one that would, in its own right, offer massive gains to human rights in the way that a return to Thaksin or royal liberalism would not (there is no need to speak of further military rule in this regard). It would entail social pressure on constitutional instruments to protect rights.
It is in the unfolding process of struggle that we may identify new drivers for human rights, reprising past movements’ concern for a just order. Society-wide knowledge of the law and its purposes, and a consciousness that demands that this purpose be fulfilled, has been lacking, leading reform efforts to piecemeal achievements, which while significant, fail to address the structural violence that underpins Thai order (Streckfuss and Templeton 2002). A social base for law in mass legal consciousness and normative expectation may now be emerging from below. The current political turmoil and the mobilisation of popular sentiment against legal decisions aimed at decimating political rivals in the current political contest, may lead, or has already led, to mass conscientisation, where expectations of what law does is publicly debated.

Inconclusive: law, rights and struggle

The sources of a new legal order in Thailand will be many and varied. These are positive tendencies, and contradictory ones at that. Even during the period of semi-democracy (1980s), conservatives within the public law tradition were supporting checks and balances on the bureaucracy. For over twenty years, a bureaucratic grievance committee (the predecessor to the Administrative Court) considered thousands of cases, sometimes ruling in favour of complainants against state agencies. Human rights activists working through a committee in the Lawyers Council of Thailand, coming from a different angle, have likewise used legal, media and appeal channels to highlight abuses and seek redress (Munger 2008-2009). Structurally speaking, massive conflicts of interest regulated by the state require legal mediation. The possibility is present, not because of functional imperatives, but because there exists a critical mass of support for such a project, evident in the struggles and discourses of the last two decades. The common resources available for the reconstruction of a general law seem evident. They stretch across the political spectrum and no one movement or class holds a monopoly of right. In a non-partisan interpretation it is possible to see how liberals, conservatives and radicals have been part of the process of constructing a more general law, however unevenly and at cross purposes. By different strategies, each has challenged the particular, and now, as Thailand confronts the crisis of the particular, a populist with prerogative tendencies versus a liberal-statist coalition willing to wield law for the destruction of a political foe, the need for a general law is felt. It is in that general law, emerging from public consciousness and contingent consent for a political settlement, that a more abiding regard for human rights, even in the context of ongoing inequality, can be wrought.

Historical outcomes are rarely the product of design. In that sense, the possibility of a more robust human rights regime in Thailand as a consequence of the debilitating political struggles of the last three years is no one’s doing and everybody’s.