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.
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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.
Showing posts with label rule of law. Show all posts
Showing posts with label rule of law. Show all posts
June 5, 2010
October 24, 2009
Ambivalent State, Ambivalent Rights
A month or so ago I posted the first part of a paper on human rights in Thailand, in which I focused on the War on Drugs. That part appears here. I've had several requests to post the remaining paper. The second half is likely to undergo significant reworking in the published piece to appear in a volume on Human Rights in Asia, but I've decided to post it in any case. The paper meanders a bit as I am still thinking through some of these issues, and the paper covers some material that will be quite familiar to anyone who reads on Thailand.
Part Two of paper presented to Human Rights in Asia Workshop, University of Melbourne, October 1-2, 2009.
Ambivalent About Rights: “Accidental” Killing Machines, Democracy and Coups D’etat.
Ambivalent State: Ambivalent Rights
Fairy tale narratives of Thai democratization abounded in the 1980s and 1990s. Thailand’s relatively open “semi-democracy” of the 1980s transformed into a fuller democracy of the late 1980s, when General Prem resigned as prime minister (1980-1988) and an elected MP assumed the prime ministership. And despite the “hiccup” of the 1991 coup and the massacre of pro-democracy demonstrators in May 1992, for which the military issued itself an amnesty, the progress of democracy seemed inexorable. Having forced the military out of office in 1992 reformers of various political persuasions produced the 1997 Constitution, a product of relatively open public deliberation. That constitution was liberal communitarian in its rights regarding articles, liberal in its desire to divide the exercise of power, but authoritarian in its desire to provide mechanisms for a strong executive. By focusing on formal structures, elections, and constitutions, superficial observers (including in part this author), with a comparative bent, could beguile themselves into believing that despite obvious flaws on the whole Thailand was doing as well as might be expected. What was missing in these accounts was willingness to square up to the nature of the regime forces and contestation that occurred behind the formal edifice of parliament and elections, of the different social forces fighting for power and control. To make sense of those forces required revisiting the founding of the “ambivalent state” and its destruction of popular forces and, with that founding, the removal of a social base for rule of law.
By ambivalent state I refer to the lack of any fundamental agreement (the lack of what Schmitter calls contingent consent among elites for a bounded regime of contestation) on political order on the part of competing regime framers since the popular movements of the 1970s were decimated by a mixture of repression, murder and imprisonment. Thailand’s “ambivalent state” is the fundamental condition for human rights abuse in Thailand because it facilitates the exercise of authoritarian power and the perpetuation of its effects, and simultaneously closes off possibilities of sustained reform while allowing for piecemeal addressing of grievance. The political contest within the ambivalent state has been about state capture by competing elite forces (including the bureaucratic class), and the public goods that the state provides have been diminished.
The ambivalent state is a product of a very political struggle. In the 1970s a major realignment of forces occurred. The month of October in 1973 and 1976 metaphorically - but only just - bookends this period by funeral pyre. In October 1973 students were shot down by a military regime intent on holding power. In October 1976 students were killed by the mobilization of paramilitary elements - with apparent links to the palace - against students at Thammasat University, which paved the way for a hardline coup d’état backed by palace and military/bureaucratic forces. Between the bookends, antagonistic forces struggled to define the nation’s fate, from communist insurgents, nascent unions, radical students, nation-royalist scouts, business corporatists, farmers associations, political elites, Buddhist progressives, para-military rightists – the list is endless. Human rights were observed more in the breaching than in the protecting. The 1976 coup group at once consolidated the position of the palace and then paved the way, by its own demise in 1977, for a political settlement of a very limited liberal bureaucratic order in the1980s, which had at its centre the monarchy. It is to this period that we must look to understand the persistence of Thailand’s ambivalent state and the resulting abuse of human rights into the first decade of the 2000s.
The most fundamental condition of human rights abuses in Thailand is not the absence of the rule of law – which only begs the question of why it should be absent – but resides in the cumulative destruction of social and class forces that would make meaningful the constitutional rights and dignity afforded to Thai citizens, in either liberal constitutionalist or other forms. The history of this is evident in the repression of popular forces in 1975 and 1976, continual intelligence and security interference in union movements and social movements, repressive actions, use of nationalist and royalist appeals to peace and conciliation and, in thousands of sites around Thailand where forces for change have been silenced, some killed. The constant harassment of forces for social change, in a relatively open system of contestation, has resulted in diminishing the impact of such forces on the larger body politic. Moreover, with the destruction of anti-hegemonic forces, Thai governments (authoritarian and formally liberal or democratic) have provided space for reformist actors within elite defined boundaries to advocate within for change and reform, thus producing an accommodation to state structures and predominant social mores, leading to a royalist reading of democratization and rights observance that I have named “royal liberalism".
This tautological formula – that rights are not real because they are not realized by relevant forces – has implications for understanding the uneven nature of rights application in Thailand. The seemingly solid edifice of formal rights in the constitution (1997 and 2007), and the networks and discourses that promote them, are peripheral to the dominant forces that occupy state apparatuses. Those forces, a periodically varying mixture of statists, liberal and conservative reformers and plutocrats are in continual struggle over possession of the state, with no single force predominating and no social compromise being established on which rights could be advanced. Each has its own distinctive view of what Thai society and capitalism should be, and each views radicalism and action from below as dangerous to its interests. Each force has in its own way been hostile to popular forces for progressive and empowering social change. In the absence of stability and a rule of law to codify the resulting constitutional order, the exercise of power has largely been authoritarian, no matter what formal regime was in place.
This is not to say that rights have not advanced or that all elites are careless about rights, but it is to say that the social fabric that grounds rights (social movements and resulting norms of a widespread sense of a right to rights) as a thing of this life as against a thing of metaphysical ‘law’ has not become a social fact. There are indeed tendencies in this direction both within communities making citizenship claims on the state (there are hundreds of such instances in the last decade) and within the judiciary, as noted by a number of decisions that have applied constitutional principles to rule on violations of rights on citizenship, corruption, freedom of speech. But this is to say that the very state that the international human rights regime expects to observe and monitor rights observance and protection is the very state that has undermined rights. The cumulative failure to embed an agreed regime form in which law serves as a regulating function for all is easy enough to see. Coup decrees have the force of law even after “constitutional rule” returns. This is a contradiction that nicely sums up the generalized status of law as an instrument of raw power, not of protection. But original sin is not the military’s alone. Moneyed-interests buy judgements, harass witnesses, and are given special treatment and draconian lese majeste laws protect a cabal of insiders.
Against this backdrop of political “unsettlement” and the weak position of law, in the 1990s it appeared that liberal currents and institutions would prevail and that Thailand’s move to liberal democracy would be consolidated. Yet the achievement of the 1990s (most notably the 1997 constitution) was at the national political level that had little concrete resonance or support among Thailand’s population, it was at once a project of some abstraction from their needs for responsive policy and government that had been achieved at the cost of alternative political orders demobilized during the 1970s and 1980s.
The fragile nature of this emergent liberalism would find its tentative hold challenged by the rise of Thaksin Shinawatra, who by virtue of forging a “social contract” with Thailand’s long disenfranchised and alienated electorate would secure support to challenge the liberal order by a politics of limited redistribution of economic goods and of political power. In coming to power in 2001 Thaksin inherited the detritus of thirty years of elite rule: a public culture of impunity , of hierarchy, and of surreal image above substance, what Jackson has termed a “regime of images”. Combined with his desire to consolidate power, demonstrate his capacity to control complex social issues, and willingness to shortcut process and deliberation with action, Thaksin’s inheritance of this detritus made for a fatal mix that produced the accidental killing machine.
From Accidental Killing Machines to Generalized Law?
The war on drugs has now faded from view, pushed into the background by the magnitude of formal and substantive rights violation in the post-coup period. In the face of a raw struggle for power, in which networks of military, bureaucratic and capitalistic cliques have been revealed, the tendency has been Thaksin redux , to restore the status quo ante, circa 2006. Given the knowledge we possess about the abuses that occurred under the Thaksin regime we need to ask what form of political order, given the balance of forces and accompanying political projects in present day Thailand, would best secure rights? And it is this question that has largely motivated various human rights actors - democracy activists, rights defenders, social justice activists, and even human rights commissioners – to don colours.
Although the tendency has been to defame one side or the other as “sell-outs”, people with highly respected contributions to human rights in Thailand have found themselves on opposite sides of the fence for reasons of pragmatic principle more than opportunism. One side hangs its commitment to human rights on a developing democracy under the aegis of royal liberalism – a belief that the monarchy (as an institution) can help embed liberal values of tolerance and in which the “non-political” centre of the monarchy obstructs power consolidation of anyone political actor. In a process of inflation, that side has also developed ultra-nationalist politics stepped in royalism.
The other side hangs its commitment on a movement to restore to power the people’s choice for government – Thaksin Shinawatra – and thereby break down a generation of enforced deference to society’s “betters” by overturning the results of a coup d’état. Evidence also suggests that within that camp a democratic current is emerging that is critical of Thaksin. These are, admittedly, simplistic representations of positions and much lies between and beyond them, but in essence this is the public face of the respective sides. And of course, forces within the military and bureaucracy have articulated themselves to both agendas. The machinations within elite circles, including pro-Thaksin elements, for compromise and post-succession order (on the passing of King Bhumipol) is another story altogether, and the near to medium future may well see some compromise emerge that casts aside the respective mobilized movements of red and yellow shirts.
Costs to principled rights and democratic positions are entailed in embracing either side. For neither the monarchy nor Thaksin are sound vehicles for rights protection. They are concrete actors aligned with a range of forces and interests, some of which are inimical to observance of rights. Taken historically, the emergence of a form of royal liberalism portends a Thailand in the future where a hierarchical type of elite polyarchy is embedded (period from late 1980s to early Thaksin period). That at least was its trajectory, although it had not yet dealt with the veto powers of palace and military. The 1997 constitution was in part an attempt to map Thailand’s future. Thaksinism is a more recent phenomenon borne of the confluence of Thailand’s 1997 economic crisis and the political opportunity afforded by the strengthened executive provided by a number of articles in the 1997 constitution. Characterized by some as pluto-populist the Thaksin trajectory seemed to be decidedly authoritarian, perhaps evolving towards one-party rule of some kind based on winning popular support by decisive interventions and redistribution of economic goods (Pasuk and Baker). The post-coup period has seen a reflexive return to democratic ideas and political pluralism among Thaksin fellow travelers. Indeed this highlights one of the paradoxical outcomes and dangers of the coup against Thaksin.
Thaksin Shinawatra has emerged as a useful symbol of democracy for the political leaders of the red shirts movement in Bangkok and the north of the country, and as a symbol of “edible democracy” among a mass of grass roots supporters. His portrait adorns various protest posters and publications. His “phone-ins” to big and small red rallies alike maintain momentum and keep the pro-Thaksin support base hitched to activist agendas. In the post-coup environment of 'red' media representation Thaksin’s downfall is framed within Thailand’s pround dissident history from the struggles of Pridi Phonomyong in the 1930s to the struggles for a participatory democracy in the 1990s. His fall is presented by his supporters as punishment by authoritarian forces for his democratic commitments. Significant elements of the “red-shirted” movement aim to restore his prime ministership and to knock out various corruption and political cases against him designed by post-coup authorities. For many people Thaksin - or now perhaps Thaksinism - has become, by the oddest of historical routes, a symbol of the most fundamental right of the people to chose who will rule them and for what purposes.
This development says something not only of Thaksin’s potent ability to stand in for anything at anytime (Laclau’s empty signifier) but also of the missteps along the away by authoritarian elites who sought to battle Thaksin’s popularity and threat to their own privileged position by clumsy anachronistic dictatorial intervention and paternalism. For example, a little more than a year after the coup, a pro-Thaksin coalition took office in January 2008 despite a year-long campaign of clumsy propaganda and patronage by the coup-installed government. The coup and subsequent judicial actions against Thaksin and his electoral popularity thwarted legitimate means for removal from office of Thaksin and his supporters. Inadvertently, Thaksin’s enemies delivered to him the mantle of martyrdom.
And now to come back to the difficult position of what force will secure rights: should human rights activists, broadly speaking, support a movement that would restore this figure to power? Should they support the counter movement of various anti-Thaksin forces: “yellow shirts”, described by some as a movement of the nation’s fascistic middle classes with powerful establishment backers [a view not shared by me]; what of liberal elites pacting with authoritarian agencies of the state who would erect at best an elitist form of polyarchy combined with worship of monarchy; and a bureaucratic statist movement of clean government and virtue that is very selective in its critiques of corruption and lack of transparency. Where to stand? Finally, what is the role of human rights “impartiality” in this struggle, if impartiality merely means the inability to influence which force will prevail and the resulting political space on which rights struggles will be based in the future? I doubt that these dilemmas are new to any place where political order has not settled, but from the vantage point of the international rights regime they must induce the kind of discomfort that leads to hasty proclamations of the obvious - routinely calling for all sides to respect the law and rights.
Both sides have claimed to seek the rule of law and both sides have noted the existence of double standards. Each side has a point. In the current conjuncture the pressing need to establish just law is apparent, but the mechanisms to so produce are not obvious. If historical struggles have a dialectical element one may wonder if the selectivity on legal sanction evidenced in red and yellow discourses 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).
The moral ambivalence of legal institutions to relations of power remains a central issue for the future of human rights in Thailand. In focusing on this, we now put human choice at the forefront, noting how legal institutions have undermined the legitimacy of law and its ability to shape a just social order. Institutions have been willing accomplices in the raw pursuit of power by failing to abide by any dictate other than that of positive law and power. In the Thai context this means to accept a coup’d’état as a “law creating fact” and to give it effective legitimacy as argued by (Prasit 35-36). The contamination of law that follows from this disposition is axiomatic. In a suggestive accounting of Thai law Prasit notes how positive legal theory in the 1940s and 1950s influenced the Thai judiciary. Such law 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 assumption was secondary to who controlled the state. Thus in legal terms a coup d’état did not impact on the legal status of the state; a fact that was then internalized. Influenced by positivist legal theory, where a sovereign command is law (and where that sovereignty is about effectiveness not legitimacy) 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 documentary excess of coup law lies stretched across the Thai legal landscape like so much rubbish along a highway. 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 to put the house in order. That most coupsters go unpunished - their actions seen as part of the safety value for a developing democracy - is a startling fact of law. It seems that the highest law is no higher than the person who overthrows it. On average (I guess) that is about 5 foot, 7 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. It could resign, it could argue that the issues before it are issues for politics not law, it could unambiguously rule a coup d’état illegal. Prasit, ever concrete, offers Article 113 of the Criminal Code (which remains in place during states of exception) as the grounds for prosecution against coupsters. Prasit goes one step further and notes the role of monarchs in Spain and elsewhere in protecting the constitution, implicitly noting the silence of the Thai king on coups. The legacy of positive legalism and the role by which law has served power is again evident in the post coup environment when many decisions have clearly advanced the cause of the coup group.
However, in the developing struggle between reds and yellows and in the courts, the very purpose of law has now become a public debate. And it is here that we may identify new drivers for human rights. The current political turmoil and the mobilization of popular sentiment against legal decisions that have decimated one political side in the current political contest, may mean that Thailand is on the verge of mass conscientization where expectations of what law does is matter of public debate and scrutiny in ways that are unprecedented. This can only be beneficial for developing a more robust legal climate for human rights observance. Society-wide knowledge of the law, of its purposes, and a consciousness that demands this purpose be fulfilled has been lacking, leading reform efforts to piecemeal achievements, significant in their own right, but which fail to touch on the structural violence that underpins Thai order.
In lieu of a detailed accounting of the current struggle and its engagement with law, I offer the following closing comments.
There are trends to suggest that the sources of a new legal order in Thailand will be many and varied, making it more robust. These are tendencies, and contradictory ones at that. Even during the period of semi-democracy conservatives within the public law tradition were making inroads to checks and balances on the bureaucracy. A grievance committee considered thousands of cases in a period of twenty years, ruling in favour of complainants a considerable number of time. Human rights activists working through a committee in the Lawyers Council of Thailand, working from a different angle, have likewise used legal, media and appeal channels to highlight abuses and seek redress. And structurally speaking, the very complex nature of Thailand as a modern state with a diverse population facing massive conflict of interest, will present the possibility of the need for a functioning system of law which will erode the “prerogative state” that has brought so much tragedy to Thailand. 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. Each by different strategies 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 ever felt. It is in that general law, emerging from public consciousness and contingent consent for a settlement to conflict that a more abiding regard for human rights, even in the context of ongoing inequality, can be wrought. This may well be the legacy of the 2006 coup, which opened to public viewing the bowels of power and in a matter of several years, by a process of struggle, fundamentally unsettled old platitudes masquerading as certitudes of national virtue: monarchy, religion and nation.
Historical outcomes are rarely the product of design or the fulfillment of a political agenda. 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.
Part Two of paper presented to Human Rights in Asia Workshop, University of Melbourne, October 1-2, 2009.
Ambivalent About Rights: “Accidental” Killing Machines, Democracy and Coups D’etat.
Ambivalent State: Ambivalent Rights
Fairy tale narratives of Thai democratization abounded in the 1980s and 1990s. Thailand’s relatively open “semi-democracy” of the 1980s transformed into a fuller democracy of the late 1980s, when General Prem resigned as prime minister (1980-1988) and an elected MP assumed the prime ministership. And despite the “hiccup” of the 1991 coup and the massacre of pro-democracy demonstrators in May 1992, for which the military issued itself an amnesty, the progress of democracy seemed inexorable. Having forced the military out of office in 1992 reformers of various political persuasions produced the 1997 Constitution, a product of relatively open public deliberation. That constitution was liberal communitarian in its rights regarding articles, liberal in its desire to divide the exercise of power, but authoritarian in its desire to provide mechanisms for a strong executive. By focusing on formal structures, elections, and constitutions, superficial observers (including in part this author), with a comparative bent, could beguile themselves into believing that despite obvious flaws on the whole Thailand was doing as well as might be expected. What was missing in these accounts was willingness to square up to the nature of the regime forces and contestation that occurred behind the formal edifice of parliament and elections, of the different social forces fighting for power and control. To make sense of those forces required revisiting the founding of the “ambivalent state” and its destruction of popular forces and, with that founding, the removal of a social base for rule of law.
By ambivalent state I refer to the lack of any fundamental agreement (the lack of what Schmitter calls contingent consent among elites for a bounded regime of contestation) on political order on the part of competing regime framers since the popular movements of the 1970s were decimated by a mixture of repression, murder and imprisonment. Thailand’s “ambivalent state” is the fundamental condition for human rights abuse in Thailand because it facilitates the exercise of authoritarian power and the perpetuation of its effects, and simultaneously closes off possibilities of sustained reform while allowing for piecemeal addressing of grievance. The political contest within the ambivalent state has been about state capture by competing elite forces (including the bureaucratic class), and the public goods that the state provides have been diminished.
The ambivalent state is a product of a very political struggle. In the 1970s a major realignment of forces occurred. The month of October in 1973 and 1976 metaphorically - but only just - bookends this period by funeral pyre. In October 1973 students were shot down by a military regime intent on holding power. In October 1976 students were killed by the mobilization of paramilitary elements - with apparent links to the palace - against students at Thammasat University, which paved the way for a hardline coup d’état backed by palace and military/bureaucratic forces. Between the bookends, antagonistic forces struggled to define the nation’s fate, from communist insurgents, nascent unions, radical students, nation-royalist scouts, business corporatists, farmers associations, political elites, Buddhist progressives, para-military rightists – the list is endless. Human rights were observed more in the breaching than in the protecting. The 1976 coup group at once consolidated the position of the palace and then paved the way, by its own demise in 1977, for a political settlement of a very limited liberal bureaucratic order in the1980s, which had at its centre the monarchy. It is to this period that we must look to understand the persistence of Thailand’s ambivalent state and the resulting abuse of human rights into the first decade of the 2000s.
The most fundamental condition of human rights abuses in Thailand is not the absence of the rule of law – which only begs the question of why it should be absent – but resides in the cumulative destruction of social and class forces that would make meaningful the constitutional rights and dignity afforded to Thai citizens, in either liberal constitutionalist or other forms. The history of this is evident in the repression of popular forces in 1975 and 1976, continual intelligence and security interference in union movements and social movements, repressive actions, use of nationalist and royalist appeals to peace and conciliation and, in thousands of sites around Thailand where forces for change have been silenced, some killed. The constant harassment of forces for social change, in a relatively open system of contestation, has resulted in diminishing the impact of such forces on the larger body politic. Moreover, with the destruction of anti-hegemonic forces, Thai governments (authoritarian and formally liberal or democratic) have provided space for reformist actors within elite defined boundaries to advocate within for change and reform, thus producing an accommodation to state structures and predominant social mores, leading to a royalist reading of democratization and rights observance that I have named “royal liberalism".
This tautological formula – that rights are not real because they are not realized by relevant forces – has implications for understanding the uneven nature of rights application in Thailand. The seemingly solid edifice of formal rights in the constitution (1997 and 2007), and the networks and discourses that promote them, are peripheral to the dominant forces that occupy state apparatuses. Those forces, a periodically varying mixture of statists, liberal and conservative reformers and plutocrats are in continual struggle over possession of the state, with no single force predominating and no social compromise being established on which rights could be advanced. Each has its own distinctive view of what Thai society and capitalism should be, and each views radicalism and action from below as dangerous to its interests. Each force has in its own way been hostile to popular forces for progressive and empowering social change. In the absence of stability and a rule of law to codify the resulting constitutional order, the exercise of power has largely been authoritarian, no matter what formal regime was in place.
This is not to say that rights have not advanced or that all elites are careless about rights, but it is to say that the social fabric that grounds rights (social movements and resulting norms of a widespread sense of a right to rights) as a thing of this life as against a thing of metaphysical ‘law’ has not become a social fact. There are indeed tendencies in this direction both within communities making citizenship claims on the state (there are hundreds of such instances in the last decade) and within the judiciary, as noted by a number of decisions that have applied constitutional principles to rule on violations of rights on citizenship, corruption, freedom of speech. But this is to say that the very state that the international human rights regime expects to observe and monitor rights observance and protection is the very state that has undermined rights. The cumulative failure to embed an agreed regime form in which law serves as a regulating function for all is easy enough to see. Coup decrees have the force of law even after “constitutional rule” returns. This is a contradiction that nicely sums up the generalized status of law as an instrument of raw power, not of protection. But original sin is not the military’s alone. Moneyed-interests buy judgements, harass witnesses, and are given special treatment and draconian lese majeste laws protect a cabal of insiders.
Against this backdrop of political “unsettlement” and the weak position of law, in the 1990s it appeared that liberal currents and institutions would prevail and that Thailand’s move to liberal democracy would be consolidated. Yet the achievement of the 1990s (most notably the 1997 constitution) was at the national political level that had little concrete resonance or support among Thailand’s population, it was at once a project of some abstraction from their needs for responsive policy and government that had been achieved at the cost of alternative political orders demobilized during the 1970s and 1980s.
The fragile nature of this emergent liberalism would find its tentative hold challenged by the rise of Thaksin Shinawatra, who by virtue of forging a “social contract” with Thailand’s long disenfranchised and alienated electorate would secure support to challenge the liberal order by a politics of limited redistribution of economic goods and of political power. In coming to power in 2001 Thaksin inherited the detritus of thirty years of elite rule: a public culture of impunity , of hierarchy, and of surreal image above substance, what Jackson has termed a “regime of images”. Combined with his desire to consolidate power, demonstrate his capacity to control complex social issues, and willingness to shortcut process and deliberation with action, Thaksin’s inheritance of this detritus made for a fatal mix that produced the accidental killing machine.
From Accidental Killing Machines to Generalized Law?
The war on drugs has now faded from view, pushed into the background by the magnitude of formal and substantive rights violation in the post-coup period. In the face of a raw struggle for power, in which networks of military, bureaucratic and capitalistic cliques have been revealed, the tendency has been Thaksin redux , to restore the status quo ante, circa 2006. Given the knowledge we possess about the abuses that occurred under the Thaksin regime we need to ask what form of political order, given the balance of forces and accompanying political projects in present day Thailand, would best secure rights? And it is this question that has largely motivated various human rights actors - democracy activists, rights defenders, social justice activists, and even human rights commissioners – to don colours.
Although the tendency has been to defame one side or the other as “sell-outs”, people with highly respected contributions to human rights in Thailand have found themselves on opposite sides of the fence for reasons of pragmatic principle more than opportunism. One side hangs its commitment to human rights on a developing democracy under the aegis of royal liberalism – a belief that the monarchy (as an institution) can help embed liberal values of tolerance and in which the “non-political” centre of the monarchy obstructs power consolidation of anyone political actor. In a process of inflation, that side has also developed ultra-nationalist politics stepped in royalism.
The other side hangs its commitment on a movement to restore to power the people’s choice for government – Thaksin Shinawatra – and thereby break down a generation of enforced deference to society’s “betters” by overturning the results of a coup d’état. Evidence also suggests that within that camp a democratic current is emerging that is critical of Thaksin. These are, admittedly, simplistic representations of positions and much lies between and beyond them, but in essence this is the public face of the respective sides. And of course, forces within the military and bureaucracy have articulated themselves to both agendas. The machinations within elite circles, including pro-Thaksin elements, for compromise and post-succession order (on the passing of King Bhumipol) is another story altogether, and the near to medium future may well see some compromise emerge that casts aside the respective mobilized movements of red and yellow shirts.
Costs to principled rights and democratic positions are entailed in embracing either side. For neither the monarchy nor Thaksin are sound vehicles for rights protection. They are concrete actors aligned with a range of forces and interests, some of which are inimical to observance of rights. Taken historically, the emergence of a form of royal liberalism portends a Thailand in the future where a hierarchical type of elite polyarchy is embedded (period from late 1980s to early Thaksin period). That at least was its trajectory, although it had not yet dealt with the veto powers of palace and military. The 1997 constitution was in part an attempt to map Thailand’s future. Thaksinism is a more recent phenomenon borne of the confluence of Thailand’s 1997 economic crisis and the political opportunity afforded by the strengthened executive provided by a number of articles in the 1997 constitution. Characterized by some as pluto-populist the Thaksin trajectory seemed to be decidedly authoritarian, perhaps evolving towards one-party rule of some kind based on winning popular support by decisive interventions and redistribution of economic goods (Pasuk and Baker). The post-coup period has seen a reflexive return to democratic ideas and political pluralism among Thaksin fellow travelers. Indeed this highlights one of the paradoxical outcomes and dangers of the coup against Thaksin.
Thaksin Shinawatra has emerged as a useful symbol of democracy for the political leaders of the red shirts movement in Bangkok and the north of the country, and as a symbol of “edible democracy” among a mass of grass roots supporters. His portrait adorns various protest posters and publications. His “phone-ins” to big and small red rallies alike maintain momentum and keep the pro-Thaksin support base hitched to activist agendas. In the post-coup environment of 'red' media representation Thaksin’s downfall is framed within Thailand’s pround dissident history from the struggles of Pridi Phonomyong in the 1930s to the struggles for a participatory democracy in the 1990s. His fall is presented by his supporters as punishment by authoritarian forces for his democratic commitments. Significant elements of the “red-shirted” movement aim to restore his prime ministership and to knock out various corruption and political cases against him designed by post-coup authorities. For many people Thaksin - or now perhaps Thaksinism - has become, by the oddest of historical routes, a symbol of the most fundamental right of the people to chose who will rule them and for what purposes.
This development says something not only of Thaksin’s potent ability to stand in for anything at anytime (Laclau’s empty signifier) but also of the missteps along the away by authoritarian elites who sought to battle Thaksin’s popularity and threat to their own privileged position by clumsy anachronistic dictatorial intervention and paternalism. For example, a little more than a year after the coup, a pro-Thaksin coalition took office in January 2008 despite a year-long campaign of clumsy propaganda and patronage by the coup-installed government. The coup and subsequent judicial actions against Thaksin and his electoral popularity thwarted legitimate means for removal from office of Thaksin and his supporters. Inadvertently, Thaksin’s enemies delivered to him the mantle of martyrdom.
And now to come back to the difficult position of what force will secure rights: should human rights activists, broadly speaking, support a movement that would restore this figure to power? Should they support the counter movement of various anti-Thaksin forces: “yellow shirts”, described by some as a movement of the nation’s fascistic middle classes with powerful establishment backers [a view not shared by me]; what of liberal elites pacting with authoritarian agencies of the state who would erect at best an elitist form of polyarchy combined with worship of monarchy; and a bureaucratic statist movement of clean government and virtue that is very selective in its critiques of corruption and lack of transparency. Where to stand? Finally, what is the role of human rights “impartiality” in this struggle, if impartiality merely means the inability to influence which force will prevail and the resulting political space on which rights struggles will be based in the future? I doubt that these dilemmas are new to any place where political order has not settled, but from the vantage point of the international rights regime they must induce the kind of discomfort that leads to hasty proclamations of the obvious - routinely calling for all sides to respect the law and rights.
Both sides have claimed to seek the rule of law and both sides have noted the existence of double standards. Each side has a point. In the current conjuncture the pressing need to establish just law is apparent, but the mechanisms to so produce are not obvious. If historical struggles have a dialectical element one may wonder if the selectivity on legal sanction evidenced in red and yellow discourses 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).
The moral ambivalence of legal institutions to relations of power remains a central issue for the future of human rights in Thailand. In focusing on this, we now put human choice at the forefront, noting how legal institutions have undermined the legitimacy of law and its ability to shape a just social order. Institutions have been willing accomplices in the raw pursuit of power by failing to abide by any dictate other than that of positive law and power. In the Thai context this means to accept a coup’d’état as a “law creating fact” and to give it effective legitimacy as argued by (Prasit 35-36). The contamination of law that follows from this disposition is axiomatic. In a suggestive accounting of Thai law Prasit notes how positive legal theory in the 1940s and 1950s influenced the Thai judiciary. Such law 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 assumption was secondary to who controlled the state. Thus in legal terms a coup d’état did not impact on the legal status of the state; a fact that was then internalized. Influenced by positivist legal theory, where a sovereign command is law (and where that sovereignty is about effectiveness not legitimacy) 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 documentary excess of coup law lies stretched across the Thai legal landscape like so much rubbish along a highway. 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 to put the house in order. That most coupsters go unpunished - their actions seen as part of the safety value for a developing democracy - is a startling fact of law. It seems that the highest law is no higher than the person who overthrows it. On average (I guess) that is about 5 foot, 7 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. It could resign, it could argue that the issues before it are issues for politics not law, it could unambiguously rule a coup d’état illegal. Prasit, ever concrete, offers Article 113 of the Criminal Code (which remains in place during states of exception) as the grounds for prosecution against coupsters. Prasit goes one step further and notes the role of monarchs in Spain and elsewhere in protecting the constitution, implicitly noting the silence of the Thai king on coups. The legacy of positive legalism and the role by which law has served power is again evident in the post coup environment when many decisions have clearly advanced the cause of the coup group.
However, in the developing struggle between reds and yellows and in the courts, the very purpose of law has now become a public debate. And it is here that we may identify new drivers for human rights. The current political turmoil and the mobilization of popular sentiment against legal decisions that have decimated one political side in the current political contest, may mean that Thailand is on the verge of mass conscientization where expectations of what law does is matter of public debate and scrutiny in ways that are unprecedented. This can only be beneficial for developing a more robust legal climate for human rights observance. Society-wide knowledge of the law, of its purposes, and a consciousness that demands this purpose be fulfilled has been lacking, leading reform efforts to piecemeal achievements, significant in their own right, but which fail to touch on the structural violence that underpins Thai order.
In lieu of a detailed accounting of the current struggle and its engagement with law, I offer the following closing comments.
There are trends to suggest that the sources of a new legal order in Thailand will be many and varied, making it more robust. These are tendencies, and contradictory ones at that. Even during the period of semi-democracy conservatives within the public law tradition were making inroads to checks and balances on the bureaucracy. A grievance committee considered thousands of cases in a period of twenty years, ruling in favour of complainants a considerable number of time. Human rights activists working through a committee in the Lawyers Council of Thailand, working from a different angle, have likewise used legal, media and appeal channels to highlight abuses and seek redress. And structurally speaking, the very complex nature of Thailand as a modern state with a diverse population facing massive conflict of interest, will present the possibility of the need for a functioning system of law which will erode the “prerogative state” that has brought so much tragedy to Thailand. 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. Each by different strategies 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 ever felt. It is in that general law, emerging from public consciousness and contingent consent for a settlement to conflict that a more abiding regard for human rights, even in the context of ongoing inequality, can be wrought. This may well be the legacy of the 2006 coup, which opened to public viewing the bowels of power and in a matter of several years, by a process of struggle, fundamentally unsettled old platitudes masquerading as certitudes of national virtue: monarchy, religion and nation.
Historical outcomes are rarely the product of design or the fulfillment of a political agenda. 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.
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