In 1975 thousands of striking police joined protesters demanding that the “rule of law” be restored to Thailand, after a court ordered the release of nine alleged communists in the northern city of Chiang Mai. The protests culminated in around one hundred armed and uniformed police ransacking the house of the civilian prime minister. They were never punished. The prime minister declined to take legal action; 14 months later police led a massacre that preempted renewed military dictatorship. Rhetorical commitments to the law were backed with lawlessness, and ultimately, the justification of order by force, with or without law.
In 2006 thousands took to the streets to demand the ouster of Thaksin Shinawatra, who was accused of manipulating laws and financial institutions to serve personal objectives. His party began organizing counter protests, and allegedly arranged for physical attacks on critics. As in previous years, the pretext for the army takeover on Sept.19 was to protect the country from growing lawlessness and incipient bloody confrontation. The interim government has iterated that it will work hard to correct the wrongs of its predecessor by restoring the law to its rightful place.
Like the police in 1975, the concern of the generals in 2006 is not with the rule of law, but with the control of law.
In Thailand, the judiciary remains in essence an institution to protect elite interests. By contrast, the rule of law requires a strong and independent judiciary, free from control and able to enforce its decisions against all persons equally. Control of law means impunity, the rule of law means liability.
What offended the police in 1975 was not that the law itself was in danger, but that their control of the law and its institutions was in danger.
What worried the military in 2006 was not that the courts were unable to address the country’s problems, but on the contrary, that they might be able to do so. It was the rule of law, not lawlessness, that had to be averted at all costs. But in preventing the rule of law its meaning has been perverted, as in 1975, to correspond with control of law. The wreckers of law can then claim to be its saviors.
In the last six months the army has ransacked institutions for the rule of law in Thailand and reasserted its prerogative to control. A senior court has been closed, reconstituted and pushed about without a whimper of protest. The interim constitution has given all orders by the coup leader the effect of law: they will require parliamentary acts to be revoked. Talk of judicial review of executive actions has been forgotten. Investigative bodies have been coordinated by a revamped counter-insurgency agency under army command. Anybody connected to the former government has been removed and replaced by somebody connected to the coup group. Political activity is strictly banned, and half of the country remains under martial law.
Still this is not enough; generals need guarantees. Like earlier army-sponsored constitutions, the interim charter of 2006 contains a clause exempting them from prosecution. Some have suggested that a similar clause be inserted into the permanent constitution being written under the army’s watch, which would be unprecedented. The chairman of the drafting committee has expressed concern that ill-intentioned persons might later have the audacity to take legal action against the coup leaders, which “would not be just”. Others have helpfully suggested that the clause could be worded to avoid explicit references, or that a separate law could be passed instead. All these proposals implicitly accept that a category of persons exists that is entitled to remain outside of the law. This is not the rule of law but its antithesis.
Justice institutions in Thailand, like the former prime minister’s house, have in the last six months been ransacked and brought back under control. Anybody expecting this to have the effect of restoring stability, democracy and respect for human rights to Thailand is fooling himself.