Michael K. Connors
Ambivalent about Rights:
“Accidental” Killing Machines, Democracy and Coups D’etat
Working Paper Series
No. 102
November 2009
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AMBIVALENT ABOUT RIGHTS: “ACCIDENTAL” KILLING MACHINES,
DEMOCRACY AND COUPS D’ETAT1
Michael K. Connors
City University of Hong Kong
School of Social Science, La Trobe University
Human rights politics are typically marked by predictable scripts of violators and
promoters, of observance and neglect, and of action and policy. But to speak of
human rights in Thailand after the coup d’état of 2006 that overthrew the Thaksin
government (2001-2006) is to step into an unpredictable political minefield of local
conflict and discourse, exemplified by the political competition between “red shirt”
(pro-Thaksin) and “yellow shirt” (anti-Thaksin) movements and the rival elite
networks that have mapped on to them. The conflicting sides proclaim support for
“rights” and democracy while playing a part in the violation of both, conceived
liberally. The predictable transcript isn’t very helpful for Thailand.
Rather than offer a comprehensive account of Thailand’s human rights situation, this
chapter discusses human rights in relation to state form, democracy and the contest
between liberal and authoritarian currents. The “War on Drugs” (WOD), during the
tenure of the elected Thaksin government, is used as a case study to examine forces
that combined to abuse human rights. To bring those events into the present postcoup discussion helps identify uncertainties surrounding Thailand’s future capacity
for human rights protection, assuming the country will return to some form of stable
electoral democracy (though this is by no means certain). The case study might have
been the 2006-2007 coup regime’s suppression of free association, speech and
movement, but then there is nothing profoundly difficult in understanding that military
juntas, founded on repression, by definition and in practice violate basic human
rights. Any number of themes might also have been chosen. There exists exhaustive
documentation by human rights organizations such as Human Rights Watch, the
1
Work for this paper was enabled by research conducted under an ARC Discovery Grant. A version
of this paper was presented at the “Human Rights in Asia” University of Melbourne, October 1-2,
2009. I wish to thank Michelle Ford especially, and other participants at the workshop, for very helpful
comments.
1
Southeast Asia Research Centre Working Paper Series, No. 102, 2009
Asian Human Rights Commission, and the Asian Legal Resources Centre on rights
abuses against “hill-tribes”, the Muslim population in the “deep south”, convicts and
suspects, refugees, human rights defenders seeking justice, and communities and
groups in the midst of an environmental or resource conflict. These abuses have
occurred under formally elected governments, but what marks the WOD for
treatment here is its status as a national event. It was not a discrete abuse of group,
time and place – such as the localized killings of over twenty human rights defenders
in the last decade (National Human Rights Commission 2004) – but a nationally
mobilized policy by an elected government. This paper’s principal concern then is
with explaining in a broad sense, the facilitative conditions that allowed mass murder
to occur during the WOD, as an entry point into understanding the generalized
conditions that allow for the abuse of human rights in Thailand.
Compromised and Rhetorical
Thailand’s slide into overt authoritarianism in the last decade, under both elected and
coup-appointed governments, has shocked observers who viewed the country as
democracy’s beacon in Southeast Asia. From the 1980s onwards they imagined a
jagged but progressive path to rights observance, but Thailand’s history never
evinced a smooth path. The military has successfully overturned governments in ten
coups d’etat since 1933.2 A number of attempted coups also dot the landscape.
Large-scale political violence resulting in mass fatalities in 1973, 1976, 1992 (for
which no agent has been indicted) demonstrated ruthlessness to stay in power, but
also the willingness of democratic forces to challenge and expand political space.
Thailand’s politics have swung between military authoritarian politics and civilian
governments of various hues, but none untouched by corruption or abuse of power.
In more recent times, after the massacre of pro-democracy demonstrators in May
1992 (following the 1991 coup d’état), for which the military issued itself an amnesty,
the progress of democracy seemed inexorable. Having forced the military and their
political party backers out of office in 1992, a coalition of reformers pushed for more
fundamental reform. A product of relatively open public deliberation, the 1997
“people’s constitution” was promulgated (McCargo 2002). That constitution provided
2
The limited revolution that overthrew the absolute monarchy in June 1932 is not counted here.
Southeast Asia Research Centre Working Paper Series, No. 102, 2009
2
mechanisms for a strong executive but this was to be balanced by newly established
agencies such as Thailand’s first National Human Rights Commission, an Electoral
Commission and Administrative and Constitutional courts.
The liberalism of the
constitution intended a trajectory different from past statist discourses and practices
(Connors 1999).
The 1997 liberal project gained little traction outside reformers’ circles. To many
politicians it presented new obstacles in the pursuit of the spoils of office, to
conservatives and statists it presented challenges to authoritarian concepts of order,
in the areas of cultural production, free speech, and religious practice that were
actively resisted (see Streckfuss and Templeton 2002). To the popular masses, the
project was in some senses an abstraction, although new electoral laws, mandated
by the constitution, led to greater policy articulation among parties. The distance
between the reform project and popular need, in the context of high income
inequality, was a populism waiting to happen.
The forces of political liberalism would find their tentative victory challenged by
Thaksin Shinawatra, and his Thai Rak Thai party (TRT), which won government by
election in 2001 and 2005. In coming to power, Thaksin inherited a public culture of
impunity for the phu yai (the “big people”) and of image above substance (Jackson
2004). And by virtue of a “social contract” (Hewison 2004) for limited redistribution of
social and economic goods with Thailand’s long-alienated electorate, he secured
support to challenge the emergent liberal order, a feat aided by winning over those
political notables who had no commitment to the 1997 constitution. Thaksin’s regime
(2001-2006), presided over gross violation of human rights, including over a
thousand deaths in the War on Drugs (2003) and the Tak Bai killings of 85 unarmed
Muslim protestors, 78 of whom died in custody en-route to an army camp (2004).
Viewed as a threat to networks surrounding the monarchy (McCargo 2005) and to
the liberal project, Thaksin was deposed in a September 2006 coup d’état that laid to
rest hope for a liberal order in the short to medium term. By decree and judicial
acquiesce, a junta assumed sovereign power (see Connors and Hewison 2008;
Kasian 2006).
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The political chaos from the coup to the present has been about fundamental
questions of order – who gets to set the rules of the game – and in part about the
place of rights. The period has been marked by severe political conflict and the
trampling of rights, intensified application of lese majeste laws and obscenely long
prison sentences (18 years and 10 years in two prominent cases), street violence by
and directed against both the “red” and “yellow” shirted movements , paramilitary
attacks on protests, and censorship (see Montesano 2009; Streckfuss forthcoming)
Moreover, the quasi-judicial dismemberment of TRT based on retrospective law by
an ad-hoc Constitutional Tribunal, and subsequently its successor party (People’s
Power) on the basis of an article in the military backed constitution, indicates the
politicized use of law (Connors 2008a).
Oddly, many of the extensive rights contained in the 1997 “people’s constitution”,
abrogated after the 2006 coup, reappeared in the military-backed 2007 constitution.
Perhaps this highlights their ritualistic status, or the fact that liberal and statist
elements pacted against Thaksin. “Independent organizations” remained intact in
the 2007 constitution, but with stronger control over them granted to the judiciary and
the senate. Moreover, appointees to several of the independent organizations
assumed their positions under military rule and retain their positions into the future.
Thailand’s liberal and democratic structures are much diminished.
How are we to understand the existence of liberal platitudes and compromises under
military-backed rule? One answer is that it is merely rhetorical.
Another is
recognition of an ongoing contest about regime form in which military and statist
forces grant limited space to liberal projects. At the very least, it reflects Thailand’s
long engagement with ideas of constitutional monarchy and “good citizenship”, a
condition quite unlike other Southeast Asian states, and demonstrates a
compromised but enduring liberal ethos about the nature of power. That liberals
have proved willing to pact with statist and authoritarian elements in the interests of
“political order” (Connors 2009) since the country adopted constitutional rule in 1932,
should not discount the authenticity of the liberal project, even if it is greatly qualified.
Most historical movements, notwithstanding doctrinal purity, are marked by
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processes of compromise and strategic betrayals as part of the process of being
pragmatically effective. Thai liberalism is no different.
Rhetorically, elements of Thailand’s ruling class have subscribed to the foundations
of a liberal polity and the protection of rights. This might be presented as continuous
with Thailand’s earlier endorsement of the Declaration of Human Rights in 1948. A
glimpse at the various human rights instruments that Thailand has ratified is
evidence of a willingness to play the game of human rights affinity: International
Covenant on Civil and Political Rights, International Covenant on Economic, Social
and Cultural Rights, Convention on the Elimination of All Forms of Racial
Discrimination, Convention on the Rights of Elimination of Racial Discrimination,
Convention on the Rights of the Child, Convention on the Elimination of All Forms of
Discrimination against Women. Thailand largely plays its part in monitoring and
reporting its performance to the United Nations, if at times reluctantly and not in
always in accord with international standards. And yet even under these
mechanisms rights abuses have accelerated, driven by twin pressures of capitalist
and prebendal predatory practices over common resources and political impulses for
monopolistic power over people and institutions. In this context human rights in
Thailand are like flotsam and jetsam, subject to the ebbs and flows of political
circumstance.
In this contradictory political context, human rights advocates have been prominent,
though they have limited support. After the mass struggles of the 1970s receded,
human-rights work has been undertaken by a variety of defenders such as the
Bangkok-based Union of Civil Liberties (UCL), various issue-based NGOs, and
parliamentary committees, local and national legal advocates often working with
rights advocacy networks and grassroots organizations that span the nation. They
challenged nationalist statist discourses of benevolent bureaucratic rule and the
capture of the state by capitalist groupings. The liberally citizen-rights oriented UCL
for over a generation served as a key integrating force in documenting and
advocating rights and although small – less than a dozen staff – it has been
influential in informally nurturing activists who have then gone into other advocacy
sectors such as labour, gender, AIDS, public health and so on (Connors 2007: 214Southeast Asia Research Centre Working Paper Series, No. 102, 2009
5
221). The UCL, with other non-governmental organizations, pushed for an effective
human rights commission in the lead up to passing of the 1997 constitution
(interview with Pairot Phongpen, Bangkok, 23 March 1997). Such NGOs have acted
as a buffer against the predations of state, capital and generalized prejudice, but
have been lacking in transformative capacity. Many such organizations have been
reliant on foreign funding and are required to follow programmatic agendas, and they
have faced hostility from governments. Such forces form a quasi-civil society,
prominent in the press, but they lack a broad constituency (for critiques of NGOs and
civil society in Thailand see Kengkij and Hewison 2009; Glassman and Park 2008).
A significant shift in the “indigenization” of rights – and therefore the accommodation
of rights to “national culture”, was the formation of the National Human Rights
Commission (NHRC) in 2001. Staffed by several hundred civil servants, it is led by
Commissioners appointed, after a vetting process, by the Senate. It has produced
annual reports, engaged in low key support for individuals and, at, times high profile
condemnation of governmental abuse of power (especially on rights abuse in the
Muslim south). Advocacy has been limited by government failure to provide
adequate budgets and government hostility (interview with Saneh Chamarik,
Bangkok, 12 February 2008). A significant element of rights advocacy in Thailand
concerns community rights – which are recognized in the constitution. Buddhist and
secular communitarian reformers, prominent in the NHRC, have advocated for
community rights over forests and common resources.
Social and economic
communitarianism has also been differentially propagated by development agencies
close to the palace and the interior ministry in an attempt to hegemonize civil society.
This discursive battle and accommodation has spawned great political compromises,
evident within the NHRC, with some rights activists and technocrats seeing
Thailand’s democratic future and rights protection best staked on the fortunes of a
monarchy purportedly acting as a neutral centre and safety valve of last resort. This
is a position I have elsewhere described as “royal liberalism” to refer to a politics of
division of powers, “good citizenship”, and elitist concern over the excesses of
majoritarianism. It is a politics that also embraces royal nationalism and
communitarian rhetoric (Connors 2008b). Nevertheless, advocacy on community
rights has been important in the context of contest over land rights and resources by
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6
colluding business predators and bureaucrats against hundreds of communities.
Other Commissioners with legal backgrounds have fought individual cases, but the
nature of Thai legal institutions means that victories do not carry the weight of
precedent and no critical mass of socially engaged legal practitioners has emerged
(interview with Wasant Panich, Bangkok, 1 August 2008).
Following the 2006 coup the NHRC fell into disarray. Many democracy activists and
human rights observers judged the NHRC’s stance against the coup to be nominal.
The NHRC failed to condemn the coup, but expressed “grave concern” and
cautioned the coup’s leaders not to restrict human rights, the observance of which it
pledged to continue monitoring (see National Human Rights Commission 2006). One
Commissioner, Jaran Ditapichai, a strident critic of Thaksin, joined anti-coup protests
and increasingly supported, on the basis of democratic mandate, the return of
Thaksin to political rule (interview with Jaran Ditapichai, Bangkok, 6 February 2008).
More recently, conservative forces, assertive in the post-coup period, handpicked
new Commissioners few of whom have little claim to human rights experience. The
Asian Human Rights Commission (2009) has denounced the new Commissioners
and the selection process as contrary to the Paris Principles requirement that
Commissions be independent, and has sought its exclusion from United Nations
forums. The ease with which the NHRC has fallen to politics points to the fickle
sands on which Thai human rights institutions have been built.
Why the “War on Drugs”?
It was the WOD that shattered any illusions in the strength of Thai liberalism and its
capacity to advance rights, and it illuminates a generalized condition of impunity
enjoyed by human rights abusers, both in the past and presently (there have been
no convictions for the major killings by state forces in 1976, 1992 and 2004. If the
WOD was a product of circumstances during the Thaksin era, it also reflected a
broader pattern of abuse that transcends that period. Examining the WOD brings into
relief the flaws of law enforcement and the particular role of police in human rights
abuses (the largest complaints received by the National Human Rights Commission
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concerns police and judicial processes).3 Those flaws include casually planting
evidence, mistaken identity, incompetent coronary reports, and bureaucratic
bungling in the compilation of suspect lists (blacklists) used to target victims. The war
was carried out by an elected administration, pointing to the authoritarian possibilities
when illiberal leaders mobilize mass opinion and give carte blanche to a notoriously
corrupt police force. Indeed, the WOD profoundly problematizes the relationship of
majoritarian rule, law, and human rights abuse. That Thaksin’s popularity as a
decisive leader increased as a consequence of the WOD raises the question of what
comes after an election in terms of accountability and accountability to whom.
An Accidental Killing Machine?
In January 2003 the government approved aggressive measures to address
proliferating drug use, then at epidemic proportions. The government’s actions were
presented as a response to a speech by King Bhumipol (2002) in which, using the
term “war on drugs”, he commented on rising drug use. Privy Councilor Phichit
Kunlawanit called on the government to use its majority to establish a special
narcotics court, stating that “if we execute 60,000 the land will rise and our
descendants will escape bad karma” (Daily News 2003). The government
sycophantically reported that it aimed to eradicate illicit drugs before the king’s
birthday (Siamrat 2003a).
At a meeting of government officials in mid-January, Thaksin spoke of the necessity
of eradicating drug traffickers as matters of national security. Provincial governors
would be responsible for coordinating the effort and failure to do so would result in
removal from office. Nicholas Cheesman (2003: 30), from the Asian Legal Resource
Centre, noted that financial incentives for the capture of drug suspects included
rights to a proportion of seized property of drug traffickers by arresting officers, and
this applied even if suspects were killed.
Operating agencies were required to
produce lists of suspects (effectively blacklists) to be used to measure efficiency in
reaching targets formulated by the Ministry of Interior (Cheesman 29-31). Provincial
governors were set targets of 25 percent, 50 percent and 75 percent (originally 100
percent) in February, March and April respectively. Exactly what targets? Officials
3
Calculated from annual reports of the National Human Rights Commission.
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were to report that action had been taken against suspects listed. Accounts differ,
but it seems that over 70,000 names appeared on competing lists (the police and
government departments had different lists). Actions to be reported included arrest,
warning, communication to users and rehabilitation. But as the war got under way it
became obvious that results were being tallied in grotesque ways, with officials
reporting the number of deaths, not only to the government but to the press.
In mid-February, the National Center for Combating Drugs, within the Interior
Ministry, specified that in order to delete the name of drug traffickers, users and
producers from lists (that, is reach targets) the following criteria could be taken into
account: “arrest, extrajudicial execution or death (for whatever reason)” (see National
Human Rights Commission 2003: 13). The Interior Ministry was informing officials in
precise terms that the names of those being murdered could be struck off the list. By
default, death as a measure of efficiency was being given official sanction.
Initially, officials and the government gleefully reported the mounting death toll of
“drug traffickers” it said were being killed by drug networks in order to silence them
the so called cutting the link killings (khaa-tat-ton). Concern about deaths was
casually brushed aside, by various political and bureaucratic spokespersons, with
reprimands not to care about the deaths of anti-social elements (Krungthepthurakit
2003a). Towards the end of February, in response to critics, the government sought
to limit the publication of death tolls, perhaps fearful that its operational policy of
counting deaths would potentially implicate it in human rights crimes in the future
(Matichon 2003a). But targets remained in use. As the February deadline for targets
approached, one newspaper columnist pithily advised travelers to steer clear of
provinces that had performed poorly, for he expected a killing spree to make up the
shortfall (Krungthepthurakit 2003b).
Estimates of deaths during the war on drugs range between 1200-4000. Ambiguity
and uncertainly continued for several years because the Thaksin government
refused to deliberate and investigate the matter. In early 2008 the Independent
Committee for the Investigation, Study and Analysis of the Formulation and
Implementation of Narcotic Suppression Policy (ICID 2008) issued a Preliminary
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Report. It noted the extraordinary rise in murder cases during the war on drugs.
During the three months of the war’s duration, the rate of murder increased by 88
percent. The ICID found that of the 2559 cases totaling 2873 deaths (2559 cases)
from February to April, drug related cases accounted for 1187 totaling 1370 murders.
In 29 cases suspects had been arrested, while 47 suspects were at large. Of the
remaining 1111 cases, no perpetrators had been identified. In the remaining 1372
non-narcotic related cases totaling 1449 deaths, 791 suspects had been identified or
arrested, demonstrating that few resources were allocated to “drug” murders. The
ICID reported that of the extra-judicial executions in this period 41 were drug related
and 11 were as yet for unidentified causes.4
Many observers suspected collusion between corrupt police officers and mafia
elements in the killing spree because “blacklists” were leaked and deaths were often
reported after suspects departed police stations. Even the government recognized
that names on the blacklist may have appeared inappropriately as a result of
defamation, misunderstanding or negligence (Thai Post 2003a). A failure to properly
investigate the deaths was also common. In some instances, ill equipped and trained
doctors with no skills in autopsy were required to certify cause of death with physical
evidence compromised (Thai Post 2003b). As reported by Meryam Dabhoiwala
(2003: 9),
According to Amnesty International, “Authorities are not permitting
pathologists to perform autopsies and bullets are reportedly being removed
from the corpses.” And according to Dr Pornthip Rojanasunan, acting
director of the Forensic Science Institute, in more than half of the cases
seen by her the drugs appeared to have been planted on the victims after
their deaths—jammed in pockets at unnatural angles.
Government officials reported being put under pressure to perform or face punitive
removal from their posts. Nipit Intrasombat (Democrat Party MP), speaking in
parliament, lamented that most officials were incapable of challenging the targets:
4
The committee used police sources. After criticism of the death toll the police rushed in 2003 to
downgrade the number of deaths occurring as a result of the war on drugs.
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10
Police in the provinces have asked me to tell you that the order is a sin, but
Thai government officials, well, I don’t want to use the world evil, but they
prefer to keep their position than their humanity… They have stated they need
to be involved in the killings in order to maintain their position.” (Royal Thai
Government 2003: 33)
Nipat launched an impassioned attack on the government, challenging the Interior
Minister to make arrests in 50 percent of the “drug” murders. The minister responded
that setting targets would lead to the arrest of scapegoats. To this Nipit riposted
I asked the honorable minister to arrest 50% of those involved in the
“cutting- the-link” killings. He said he cannot, saying it would be equal to
arresting scapegoats…and what of your 25% per month, are they
scapegoats. Yes a lot! And in March another 25% and in April another
25%...you are ordering the arrest of many scapegoats and many people die,
and yet you are not brave enough to order the arrest of 50% [of those doing
the killing] because you are afraid it will return to you, because you are the
one who has ordered this policy. (Royal Thai Government 2003: 18-20)
The logic of the “accidental” killing machine laid bare, the government continued
to defend its position
Opposition
Public intellectuals, the National Human Rights Commission (NHRC), the Democrat
Party and independent senators such as Kraisak Choonhaven and Chermsak
Pintong challenged the government. Critical coverage also appeared in newspapers.
Critics charged the government with turning Thailand into a police state, decrying the
fate of the liberal project.
Chuan Leekpai, leader of the Democrat Party
remonstrated:
Our country is governed by a democracy not a dictatorship or
tyranny…It is true that in some cases…people have disgust towards
drug traffickers because they are a source of much evil in society, but
there is no exception to allow arbitrary processes above the law. Legal
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11
powers are capable of handing such people. Even though it may be
slow…it is a guarantee for the innocent (Matichon 2003b).
The NHRC warned the government that while it was supportive of the attempt to
eradicate drug trafficking, it would pursue its mandate. A number of listees having
requested assistance, the NHRC called on the government to abandon use of
blacklists. One commissioner took concerns of the mounting death toll to the United
Nations and earned a rebuke from TRT politicians, who threatened him with
impeachment. The NHRC responded:
Are we going forward or back to the dictatorships of the past? Use of
state power must be transparent. It cannot be helped that the work of
the National Human Rights Commission may offend feelings… or those
who have a tendency to use power arbitrarily (Matichon 2003c).
The NHRC subsequently collected evidence of the killings for scores of bereaved
families to support investigation into death and compensation. In the absence of proper
police reports, it published and ciculated dozens of site reports of deaths, recording the
circumstances of death and taking witness statements. Few have been acted on by the police.
Government Response
Adamant that the killings were the natural outcome of bigger fish killing smaller fish
to “cut the link”, the government barely addressed human rights concerns. However,
recognizing significant opposition within parliament and by NGOs, in late February it
established several committees to oversee agencies prosecuting the war. Strategy
shifted to prompt property seizure and the death toll fell by half, arguably something
of an achievement for the forces opposing the government, but also a statement of
the limit of their influence. The government recognized that mistakes occurred but it
portrayed critics as playing into the hands of drug networks, and questioned their
“Thainess” (Khomchatleuk 2003). Thaksin called pretentious those who took the
issue to the UN, advising them not to be so “universal” (Siamrat 2003b).
A
prominent government figure, Sanoh Thiengthong, rebutted “rights talks”:
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[Regarding] those who oppose us from overseas, if our country or our
society falls into ruin they will not step into our shoes and accept
responsibility, they will condemn us [saying] that our society is not good
to visit, that it is full of criminals and drugs… We cannot give rights to
those who break the law if we wish to live together … we can only give
them the right to go to prison (Baan Meuang 2003).
The government sought to shut down inquiry into the mounting deaths. It refused to
meet with the NHRC and tried to halt a senate-sponsored meeting on the issue. It
did nothing but window-dress the issue and proclaimed that abuses of authority
would be examined.
Populist justice and Dehumanization
A disturbing feature of the war on drugs was the popular support given to the “ironfist” applied by the government. It is notable that orders from the Interior Ministry
indicate that public support from communities was a necessary part of the campaign,
and officials communicated policy and action to village and sub-district local
committees to ensure that they could demonstrate to the centre that the population
was behind the government. Public opinion on the WOD was supportive and
distressed. In a poll of over 8000 respondents from 800 communities, 90 percent
expressed satisfaction with the WOD and yet 39 percent expressed fear that they or
someone they knew might fall victim to death squads (Suan Dusit Poll 2003). There
was good reason for such fear. Stories circulated of self-reporting drug suspects
being killed on exiting police stations, yet police sent letters to listees stating that
failure to report to the local police station meant their safety could not be guaranteed.
Who, or what, could guarantee justice in these circumstances? The answer,
proffered by Thaksin was that he could.
In their indispensible study of Thaksin’s populism Baker and Pasuk (2008) note the
narrative of leadership/mass that emerged as Thaksin became more confident of his
ability to directly communicate with an “informal mass” through the media. He began
to assert himself as a medium of the people, dangerously conflating his will with that
of the people. Thaksin sought to alleviate concerns about miscarriages of justice by
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centering the possibility of justice through his person. On several occasions he called
on aggrieved people to deal directly with him, promising to use central agencies to
scrutinize the behavior of officials. Noting that it was difficult to control the “natural”
killings of drug traffickers (the cutting-the link deaths) he stated that if deaths were
“not natural” there would be investigation as “all people are under the law”. The very
distinction between “natural” and “unnatural” killings and the promise (undelivered) to
provide justice to those killed “unnaturally” was made meaningless by Thaksin’s
most conflationary statement,
Whoever has been killed in this manner [unnaturally], their relatives
may bring their grievance to the prime minister, because we have
central [agencies] that can go down and ensure justice, but [I] believe
that [the relatives] will not be so brave because today the majority of
those killed have experience [in the drug trade]. (Thai Post 2003c)
(Italics added.).
Thaksin reported that not even monks cared for such people and had refused to
perform funeral rites (Matichon 2003d). And perhaps as a summation of the process
of dehumanization, the then Interior Minister, sought to steal justice from the
deceased by denying that they had been killed, suggesting that they had “expired”.
Of the many headlines that appeared during the WOD certain pathos attaches to one
in particular that appeared in mid-February (Thai Post 2003c):
“AN OFFERING TO THE WAR ON DRUGS: 352 CORSPES –
STRESSED UBON GOVERNOR GOES TO HOSPITAL”
The article drew attention to the irrational processes underway by reference to
“offerings”. For the bereaved relatives of the victims of the WOD the experience of a
rampaging bureaucracy, armed with guns, trapping innocents in an accidental killing
machine was traumatic – a modern equivalent of ancient sacrifice to ravenous but
opaque gods. But these were gods with dreadfully contemporary names such as
Security and Targets and Blacklist. How did Thailand’s “democratic” system produce
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14
terrible human rights outcomes in the name of such Gods? And why might it threaten
to do so again – in 2008 Chalerm Yoobamrung, Interior Minister in the pro-Thaksin
Samak government threatened to reprise the war, saying 3000 to 4000 more deaths
would be natural (Matichon 2008; The Nation 2008)?
Viewed from the vantage of the present it is clear how central the war on drugs was
in consolidating the authoritarian populist nature of the Thaksin regime. After
assuming office Thaksin had been eager to silence critics. Intimidation via
government sponsored probes in 2002 through the anti-money laundering authority
into the accounts of journalists and NGO figures had created an outcry. But the war
on drugs stamped a new register of fear across the nation. The state could get away
with anything. Without an external war to ratchet up popularity, the government was
able to prosecute an imaginary war of national survival and thereby, as do all wars,
encroach on processes of law, further weakening them and expanding the borders of
the “prerogative state” with tragic and inhumane consequence. Thaksin mobilized
an inert bureaucracy; he set fantastical targets of total eradication, and threatened
removal from office for failure to achieve. He posited himself as the court of ultimate
justice, showing how fickle were the pockets of resistance.
And so it is that
Thaksin’s leadership credentials were partly built on the corpses of the war’s victims.
What Grounds for Rights?
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 2005-2006. 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, defenders,
social justice activists, and even human rights commissioners – to don colours.
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15
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 and
royalist politics, ignoring the undemocratic and authoritarian politics that have aligned
with the monarchy. 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. 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 royalism nor Thaksinism are sound vehicles for rights protection.
Taken historically, the emergence of a form of royal liberalism portends a Thailand in
the future where a hierarchical 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 (Connors 2009: 367). Thaksinism is a
more recent phenomenon borne of the confluence of Thailand’s 1997economic 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 hegemonic one-party rule of some kind based on winning popular support
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16
by decisive interventions, redistribution of economic goods, and manipulation of
institutions. 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 despite
their private reservations (various interviews with anti-coup activists by the author
Thailand 2007-2009), 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. His fall is presented by his
supporters as punishment by authoritarian forces for his democratic commitments,
as if he did not undermine the 1997 constitution that the movement now wishes to
restore. A good part of the “red-shirted” movement aims 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 (an 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
Southeast Asia Research Centre Working Paper Series, No. 102, 2009
17
figure to power? Has the movement used its leverage to win guarantees that
egregious episodes during 2001-2006 will not be repeated? Has the movement
honestly come to terms with the non-democratic and authoritarian legacy of its
chosen leader so as to better restrain him “next time”? The counter movement of
various anti-Thaksin forces also raises concern for rights:
the “yellow shirts”,
mistakenly described by some as simply a movement of the nation’s fascistic middle
classes with powerful establishment backers have shown great intolerance for
dissent despite an earlier agenda for free speech; liberal elites pacting with
authoritarian agencies of the state would erect at best an elitist form of polyarchy
combined with worship of monarchy; the bureaucratic statist movement for clean
government and virtue is very selective in its critiques of corruption and lack of
transparency. Where to stand amidst this cacophony of competing claims and
projects? 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.
The War on Justice: Historical Conditions for Human Rights Abuses in
Thailand
No one particular cause lies behind the Accidental Killing Machine, various factors
are implicated, from the broadly historical to the temporally approximate: proclivity to
social order (Pasuk and Baker 2009: 158-167), bureaucratic laxity and ineptitude,
ruthless determination for Killing Performance Indicators, sycophancy to monarchy
and a desire to win approval, and social attitudes of distance to “others” allowed that
the particular (populist justice) triumphed over the general law (citizenship). At times
of social panic or mobilized missions of social solidarity such as the war on drugs,
the possibility for abuse intensifies because the seeds for hybrid and prerogative
orders are already sprouting, a pathology that inheres in any unjust social order. To
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18
that unjust order we now turn, and its origins “naturally” predate Thaksin, and lie in
the failure to resolve state form on the side of justice and wellbeing.5
The war on drugs and its devastating consequences brings into relief the failure of
legal institutions to regulate the exercise of power. It is possible to identify emergent
rule of law discourses that eroded arbitrary power during the WOD but the dominant
theme was one of unresponsive complicity. This is not a product of the Thaksin era.
The failure of law has historic roots in the formation of the Thai bureaucratic state
with royalist and military trappings, and its penetration, latterly, by capital and the
symbiotic relationship that has ensued in the context of a political economy of vast
inequality, hierarchy and resource competition. It is not that the war on drugs was
determined by this general fact, but that in the absence of a relatively stable political
and social settlement in which broad projects of reform might be pursued, hybrid
forms of order prevail.
Speaking schematically, one may speak of an “ambivalent state” emerging in the late
1970s on the basis of repressing radical and popular social forces while allowing
new predatory business forces access to state institutions. That entry was not
premised on fundamental agreement, but rather adaptive compromise and limited
reach into the centres of power. As state and capital fused, networks of interlocking
competitive elements formed.
The tension thus arising and the expansion of
particular capitalist parties over shared control of state apparatuses with the “state
party” of bureaucrats, palace and military has been the overriding feature of the last
thirty years (see Thongchai 2008). This has produced a situation in which the
relatively unchecked powers of bureaucracy and capital assumed prerogative rights
over citizens; the law often served that prerogative or was indifferent.
“Ambivalence” refers to the lack of fundamental agreement on political order among
competing elite networks. Thailand lacks what Schmitter and Karl (1991) describe as
“contingent consent” among elites for a bounded regime of contestation- where
consent to rules of the game resides in agreement on boundaries. In the ambivalent
5
The focus in this chapter is on the nature of the state. No treatment of culture, religion, political
dynamics are given here, though they form part of the general causal factors that led to mass murder.
19
Southeast Asia Research Centre Working Paper Series, No. 102, 2009
state, boundaries preferred by different actors never settle and are regularly
transgressed. The WOD illustrates ambivalence. Different players, occupying
different positions within the state, made contradictory claims, all of which had some
institutional basis and discursive resilience, and yet those claims were so
fundamentally different that there was no corresponding stable state form in which
each was valid: if ambivalent, at times also split.
Episodes such as the WOD highlight that the 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 (all seeking
different regime forms) 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. In the absence of stability and rule of law, exercise of
power largely has been authoritarian no matter what formal regime was extant
(Connors 2009). Regime institutionalization has faltered and power and abuse have
run rampant – Thaksin’s authoritarian inclinations to expand the space of prerogative
were facilitated by this.
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 pro-democracy 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 forces within
business, the palace, the military, and the bureaucracy (Ji 2001). For three years
antagonistic forces battled, from communist insurgents, nascent unions, radical
students, nation-royalist scouts, business corporatists, farmers associations, political
elites, Buddhist progressives, and para-military rightists. The 1976 coup group ended
this turmoil and simultaneously consolidated the position of the palace and paved the
way for a political settlement of a very limited liberal bureaucratic order in the1980s.
Subsequently, intelligence and security interference in unions and social
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20
movements, repressive action, use of nationalist and royalist appeals to peace and
conciliation and generalized harassment of forces for social change has resulted in
diminishing the impact of progressive forces on the body-politic. Liberalism is feeble
in a condition where capital and state are freed from the pressures for compromise
and regulation. Here lies the facilitative condition of Thailand’s poor human rights
observance, for the most fundamental condition of human rights abuses in Thailand
is not the weakness of rule of law in the ambivalent state – which only begs the
question of why it should be absent – but the cumulative destruction of broad-based
social and class forces that would make meaningful the constitutional rights and
dignity afforded to Thai citizens, in either liberal constitutionalist or other forms.
It is tempting to identify as pivotal in this condition statist elements such as the
military and bureaucracy, but elite liberals have played a role. By being party,
accomplice or indifferent to the decimation of counter-hegemonic forces in the
1970s, and hostile to the politics of redistribution from the 1980s, political liberals
have undercut the basis on which a generalized rule of law state might have been
established. That is, by eschewing the material and ideological compromise of
contending class forces which would allow the state to more concretely serve
contending forces in a pluralized process, regulated by institutions and law, liberals
undercut the very basis on which a liberal state with social democratic trimmings
might have been built. That the 1997 constitution was so easily undercut is not
surprising.
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 institutionalized, happenstance prevails. In Thailand, the situation looks
bleak. Thai legal institutions have undermined the legitimacy of law – its ability to
shape a just social order. Thai legal 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 of that judgments can be
Southeast Asia Research Centre Working Paper Series, No. 102, 2009
21
bought does not augur well for the future. An examination of law in relation to
constitutionality lays these nefarious features bare.
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 legitimizing illegal seizures of
power (Prasit 2008: 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 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 – strengthening existing law as power discourse (ibid; 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 (ibid 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
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22
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 Section113. To rule in the case would be to accept the illegal
assumption of power by the coup group, the dissenting judge noted (Prachathai 4
November 2009).
Prasit also notes the role of the monarchy in Spain in protecting the constitution,
which leads to the question: “what position should a constitutional monarchy take on
the unconstitutional seizure of power?” 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. 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 demobilized 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 is in the unfolding process of struggle that we may identify new drivers for human
rights, reprising past movements concern for a just order. A social base for law in
mass legal consciousness and normative expectation may be emerging from below.
The current political turmoil and the mobilization of popular sentiment against legal
decisions that have aimed at decimating political rivals in the current political contest,
Southeast Asia Research Centre Working Paper Series, No. 102, 2009
23
may lead, or already has led, to mass conscientization, where expectations of what
law does is publicly debated. Society-wide knowledge of the law, of its purposes, and
a consciousness that demands that this purpose be fulfilled has been lacking,
leading reform efforts to piecemeal achievements, which while significant failed to
address the structural violence that underpins Thai order (Streckfuss and Templeton
2002).
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 semidemocracy (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.6
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 (Munger 2008-2009). And
structurally speaking, massive conflicts of interest regulated by a 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. 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 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.
6
I have compiled a database of thousands of grievances against state officials in this period.
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24
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.
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