The pretence of legality


On July 17 the government of Thailand renewed a state of emergency over the southern border provinces for the ninth time since it was introduced two years ago. That the bloodshed in the south has only worsened in these years should not be a surprise to anybody. The weakening of already limited safeguards on the activities of police, soldiers and paramilitaries there was certain to encourage more violence.

The emergency decree not only permits but also obliges extraordinary detention of suspects, by providing that “Competent officials shall be empowered to arrest and detain suspects for a period not exceeding seven days…in a designated place which is not a police station, detention center, penal institution or prison.” The effect of this clause — together with other parts of the decree — is to all but guarantee the use of torture, forced disappearance and extrajudicial killing, for which state officers need not fear consequences as they are anyhow exempt from prosecution if they have acted in “good faith”. As the decree is so vague that anything could be construed as good faith, as victims are unwilling to complain, as police won’t investigate and as judges are unlikely to hear any cases, this amounts to a blanket impunity clause.

Meanwhile, the junta that took power in Bangkok last September has proposed a national security law that owes much of its contents to the decree. The draft bill permits the army commander to curtail undefined security threats without requiring the approval of the prime minister. It grants him powers to shut roads and stop vehicles, close public gatherings, keep someone under house arrest, order employers to report on employees, oblige the police and civilian officials to cooperate with the army wherever and however necessary, issue preventive arrest orders, summon anyone to appear before a designated official on any grounds, search persons or vehicles or premises at will, seize anything, and “conduct suppressive operations against a person or group of persons or organization which gives rise to actions threatening internal security.”

None of this would require a declaration of emergency, as in the south, or even martial law, which remains in effect across over half the country; an order from the army chief would be sufficient, and there would be no recourse through judicial or legislative means. As in the south, all officers working under the security law would be protected against legal action. And although the government and senior military figures have now backed away from elements of the bill and have suggested that it could be postponed until after new elections, all have insisted that it is needed to cope with supposed new threats.

In his 1971 film “Punishment Park,” Peter Watkins wonders what might have happened if U.S. President Richard Nixon had reactivated an earlier security law and used it to combat increasingly vociferous protests against the Vietnam War, as well as small but violent political groups. He demonstrates how by loosening ordinary restraints through the use of quasi-judicial tribunals and the keeping of informal detention facilities, the government can precipitate rampant abuses of power and ultimately, primitive expressions of control and revenge.

However, in withholding civil rights Watkins’ imagined authorities are careful to see that due process is kept superficially intact. A public attorney is present during hearings and defendants are allowed to speak. But as notions of guilt and innocence, proof and doubt have been utterly perverted their objections are pointless, the outcome of cases predictable. The accused can do no more than yell; the lawyer nothing more than voice chagrin at the parody of justice into which he has been co-opted. Ultimately, all parties to the violence that follows feel safe to deny responsibility for it; after all, if everyone had just played by the rules, nothing would have happened to them — bad things only happen to bad people.

The key feature in Watkins’ film, as in Thailand today, is the pretence of legality. This pretence consists in the fraudulent notion that merely by describing something as law it is thereby made into law, even when its contents are at best incoherent and at worst absurd. It consists in the fraud that by retaining some kind of legal procedure citizens’ rights are protected, even when established institutions for justice are bypassed. It consists in the special authority bestowed upon persons by simple fact of their being named “competent officials,” even when the effect is to place them beyond the limits of ordinary law.

Everything is thus arranged so that the appearance of legality persists in its absence, and each individual state officer can be simultaneously complicit and blameless. Thus, bad things only happen to bad people.

The pretence of legality is the opposite of the principle of legality, although it is characterized by superficial likeness. “The principle of legality,” Leandro Despouy, U.N. special expert on judges and lawyers, has written, “relates to the need to have in place and to observe clear and precise provisions relating to (a) state of emergency.” This can only be done through strict application of sound law and judicial oversight. Where law is vague, the courts marginalized and ordinary procedures for obtaining evidence and detaining suspects are suspended, abuses are inevitable.

By extending the emergency decree in the south the government of Thailand has extended the use of army camps and “safe houses” as torture chambers, the wanton abducting and killing of alleged insurgents or their sympathizers, and the continued debasement of proper institutions for policing, investigation, trial and confinement. Perversely, it is now proposing to do the same for the rest of the country.


End Emergency Decree in Southern Thailand (AHRC):


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