The rule of law has been getting talked up in Thailand a lot since the former prime minister’s wife, Pojaman Shinawatra, lost a criminal case before a special bench of the Supreme Court, and her husband skipped both town and bail prior to a hearing against him too.
Amid the many editorials and headlines (Krungthep Turakit above: Thaksin, Pojaman flee), academic Michael Connors suggested that the verdict against Pojaman could bode well for a more robust rule of law. Newspaper columnist Chang Noi was effusive, declaring the verdict “a manifesto on behalf of the law.”
Thaksin even got in on the act himself, describing those pursuing his family through the courts as having “no concern for the legal system … or the universal rule of law” and claiming that he and his family are victims of “continuous injustice.”
While the former policeman’s complaints jar with his track record of getting things done any which way, the cases against him and his family do raise issues about how the rule of law needs to be understood and debated in Asia.
One of the main problems besetting talk about rule of law in the region is that it continues to be dominated by writers and thinkers living elsewhere in the world, where courts, police and administrative offices work more or less as expected.
These persons usually take separated powers, constitutionalism and representative government for granted. Some publish commentaries on high-profile cases that are in fact relevant to the society as a whole, because their law and bureaucracy are relatively coherent and systematic.
Others go into the finer points of whether or not it is possible for judges to consistently and impartially apply law, and whether the rule of law should be governed by morals or procedures.
But little if any of this is relevant to people in most parts of Asia.
Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party. In the Philippines, army-backed vigilantes kill with impunity.
That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?
These are not the sort of questions that scholars in countries leading debate about the rule of law typically ask, nor are they particularly relevant to the cases against the Shinawatra clan. But they are the sort that matter most for the rule of law in Asia.
A new language of the rule of law is needed to make sense of it in terms of Thailand and Indonesia rather than Germany or Canada, to gauge it by what goes in the streets, gambling dens and karaoke bars, rather than what goes for an ousted tycoon premier and his relatives. In short, Asia needs a new rule-of-law debate.
This debate will require asking questions about cases that will reveal many more deeply embedded and uncomfortable truths about the day-to-day workings of state agencies and agents, like, why have the police who allegedly tortured Urai Srineh at the Chonburi police station in 2005, which caused him to die from renal failure, never been properly investigated or prosecuted?
What about the ones who shot dead a suspect on the outskirts of Bangkok during 2005 and then sued a top forensic scientist and justice ministry official for saying that the man could not have committed suicide as they had claimed?
Have the three army officers found responsible in court for the killings of 29 young men at Krue Se in 2004 been prosecuted yet? If not, why not?
Has the death in army custody of Charnchai Promthongchai in Mae Hong Son at the end of 2006 ever resulted in anything being done against the responsible officers?
Why didn’t the detailed repeated complaints of Uthai Boonom and Amporn Kochabang that they were abducted, robbed and set up by Saraburi police in 2002 ever lead to a serious review of their case?
Why won’t the Department of Special Investigation come clean on what it knows about who really stabbed environmentalist monk Phra Supoj Suwajo to death in mid-2005?
And when will the courts challenge the security forces over the legality of the use of blacklists to hunt down people in the south, or the Interior Ministry over its use of them to hunt down alleged drug dealers just about everywhere else?
These are just a few examples of more important, more embedded, more difficult and more dangerous matters confronting Thailand than the cases against Thaksin and family.
This is not to say that the cases against Thaksin are unimportant; on the contrary, they are of national significance, but they are not and cannot be a gauge of the rule of law. Not only are they freighted with too much political weight, too much money and way too much of a sense of history in the making, they are in every respect too far removed from the rule of law that matters.