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Legal Defence

The verdict in the inquest on the Tak Bai case has set new standards of Thai jurisprudence.

A quick recap for those who only listen to what the government want them to hear.

In October 2004 in the wee town of Tak Bai on the Malaysian border, a group a village worthies reported the theft of guns they had ‘voluntarily’ been issued with by the government as part of a military strategy to reduce the level of violence by arming everybody.

The police took a jaundiced view of this and suspected that, nod, nod, wink, wink, the insurgents had been told (a) whose houses had the guns and (b) when the reluctant owners would be at the mosque. Like this was something they could never figure out by themselves. So instead of entering a theft on the police blotter, they arrested the villagers for arming the insurgents.

Now the life expectancy of Muslim males takes a bit of a nosedive once they are in custody. So a crowd of concerned relatives and friends quickly formed to demand not their unconditional release, but their release on bail. Since Tak Bai is a crossing point for petty traders into and out of Kelantan, lots of more or less interested hangers-about swelled the numbers.

What happened next is a matter of dispute although extensive video evidence exists for anyone who knows how to navigate to YouTube. Let’s just say that the security forces denied firing into the crowd despite the evidence of dead bodies and press photos of a crouching soldier aiming straight ahead with a casing flying up out of the breach; despite the fact that the military next day corralled the press demanding to know who the photographer was; and despite the fact that when the CDs came out, making the army’s denials completely untenable, the government made it an offence even to own a copy.

Of course it is perfectly possible to have a cover-up even if you’ve done nothing wrong.

Anyway, at this point, the military have convinced themselves that the crowd outside, the vast majority of whom, even by the military’s own account, were completely unarmed, constituted a threat to national security. So they filtered out the men and boys, made them take off their shirts, and lay them face down on the ground with their hands cuffed behind their backs. Well, some were on the ground; some were in the slowly rising waters of the Tak Bai River. There were 1,300 of them.

Now the court agrees that while the unarmed, unresisting, manacled detainees were lying in the sun, brave and fearless soldiers trampled among them, kicking heads and slamming them with rifle butts.

And here’s where the finesse of Thai legal practice shines through. You and I might think the matter is to identify the military personnel involved, establish their motives for what prima facie appears to be unprovoked assault and start criminal proceedings. Like years ago.

Ah, no. According to press reports of the court hearings (which are far from consistent and could easily be misrepresentations of the facts), the real question is whether the slap-happy soldiers were acting under orders or not.

This is crucially important in light of what comes next.

The men were made to crawl across a car park (this is crawling with no arms, you realize), and were then loaded onto the back of army trucks.

Now the military feared that allowing handcuffed, unarmed men, under armed guard, to sit or stand, might run the risk that they might, er, jeez, I don’t know. I’m not well up in military paranoia.

So the decision was made to stack them like logs. The men at the bottom were bearing the weight of 6 or 7 layers above them. For something in the region of 4 hours. Apparently none of the brass hats in charge of this was able to foresee the possibility that the ones underneath were at risk of being crushed to death or suffocated.

And when the first truck arrived at Ingkayuthaborihaan Army Camp and dead bodies were found on board, the same chain of command failed to think this through and did nothing to have the following trucks stopped and checked.

Now let’s be charitable and call this an unfortunate lapse of concentration, rather than monumental homicidal lunacy. Because it doesn’t matter what you call it. Since this was government officials acting under orders, unlike the gratuitous brutality of individual soldiers, it is exempt from prosecution or punishment.

Well, almost exempt. In the immediate aftermath, 3 ranking officers suffered the humiliation of being transferred, albeit temporarily, to inactive posts.

So the next time you are accused of breaking the law any time a state of emergency is declared, you know what to do. Claim you are a government employee who is merely obeying orders. You might get away with it.

Thai law seems to recognize the Nuremberg defence.

 

About author: Bangkokians with long memories may remember his irreverent column in The Nation in the 1980's. During his period of enforced silence since then, he was variously reported as participating in a 999-day meditation retreat in a hill-top monastery in Mae Hong Son (he gave up after 998 days), as the Special Rapporteur for Satire of the UN High Commission for Human Rights, and as understudy for the male lead in the long-running ‘Pussies -not the Musical' at the Neasden International Palladium (formerly Park Lane Empire).

 

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