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.

Seeing what we don't want to see

The excerpt below was posted on April 8 before the violence of April 10, and contained a discussion of the way commentators have chosen to put political slogans above analysis. I've re-posted it because I think an important debate has to be had about the way academics have engaged with events in Thailand over the last four years. As I outlined in the original post, I believe that easy assumptions were made about PAD because its politics were reactionary and objectionable, and in the influential world of rumour that is the blogosphere, prejudice was heaped up prejudice to create particular images that suited political agendas or biases. Many of the things that were said about PAD could be said about UDD (if news and pictures are taken selectively), but they will not be said for the simple reason that its politics are understandably sympathetically received among commentators. There was hardly any critical discussion about UDD over the last three years other than it was a misrepresented movement of the rural poor etc etc. Such casual representations have left people unprepared for unpacking the role of different factions within the UDD and their competing agendas.

Who could disagree with UDD's official calls for more democracy and an end to amat? That is easy. But understanding what UDD is, and its relation to alternative centres of power, and indeed to old power cliques is harder. ANd understanding to what extent it is transformative, or rhetorical is difficult to ascertain. Also the class composition has largely been assumed, but the early anti-coup movement that provides some of the key cadre for UDD today was Bangkok middle class. And so it goes - there are lots of questions to consider, despite the undeniable fact of the UDD's emergence as a genuine movement of people who rightly feel disenfranchised.

*****************************
"Before the beginning of the current round of protests the UDD disowned militant elements (Sae Daeng among others) that wished to displace the current UDD leadership in order to pursue a more aggressive approach. Such forces it may be speculated were possibly behind some of violence inflicted on the yellow protests in 2008.

Since the protests began, a systematic campaign of targeted attacks (around 20 so far) on government and political buildings has been unleashed as if to demonstrate the viability of an armed path should the current campaign of civil disobedience fail. No doubt it signals to military elements relative impunity for courses of action contrary to government direction. Of course the convenient third hand can be invoked as being behind the bombings, as it was in the assault on the prime minister’s car during the Songkran demonstrations, but the logic of such a claim is weak.

This bifurcation of red shirt (not specifically the United Front for Democracy against Dictatorship) strategy, if that is what it is, is hardly commented on by those who now see the reds as the hope of the future and support calls for an immediate election so that a pro-red (and pro-Thaksin) government would come to power (probable but not certain). But the campaign of bombing points at least to one possible unpleasant future should the current government fall. Any new government will have a place for all the old elements of the bureaucratic-aristocratic elite (if we take the bureaucratic-aristocratic elite to be a broad class and not a clique) as long as they are on the right side.

Any campaign of double standards needs to be just that, and whatever the outcome of this current fight, the barracks against double standards shouldn't be dismantled too quickly."