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Nidhi Eoseewong: The Past-Present-Future of the Court’s Decision

Prefatory note to the English translation: During the crackdown on red shirt protestors during April-May 2010, at least 94 people were killed and over 2000 injured. In an unprecedented event in Thai political history, the leaders who presided over the crackdown -- former prime minister Abhisit Vejjajiva and former deputy prime minister Suthep Thaugsuban (now a monk) – were indicted in October 2013 for premeditated murder under Articles  80, 83, 84 and 288 of the Criminal Code. The indictment was unprecedented because this is the first time that state officials – either those at the level of command or those who carried out orders in the field – were indicted for their role in a massacre. The criminal case came amidst ongoing inquests into the deaths, the majority of which concluded that soldiers were responsible for the deaths of civilians. 
However, the indictment and accompanying hope for accountability, was short-lived. On 28 August 2014, the Criminal Court ruled that they did not have the jurisdiction to examine the case and it would be transferred to the Supreme Court’s Criminal Division for Persons Holding Political Positions. The only penalties this court can impose are a restriction on an individual’s ability to participate in formal politics. Thanong Senamontri, the chief justice of the Criminal Court, wrote a dissenting opinion in which argued that this decision violated the rights of the families of those who were killed during the April-May 2010 crackdown to seek justice [for readers who can read Thai, the dissenting opinion can be read in its entirety as part of this article in ข่าวสด].
In the essay translated below, noted historian Ajarn Nidhi Eoseewong has expertly parsed the ways in which the court decision is not a discrete moment in the present, but is an event shot through with the resonances of the past and has significant implications for the future. In particular, he raises astute questions about the possible contents of politics. He writes that, “The Criminal Court’s view is that the massacre of people in the centre of the city by the people who held political office is merely a crime of politics. And when it becomes a crime of politics, the soldiers who carried out the actions have nothing to do with the crime at all” [ในทรรศนะของศาลอาญา การสังหารหมู่ประชาชนกลางเมืองของ ผู้ดำรงตำแหน่งทางการเมืองเป็น ความผิดทางการเมืองเท่านั้น และเมื่อเป็นคดีทางการเมือง ก็ไม่เกี่ยวกับทหารผู้ลงมือปฏิบัติการ แต่ อย่างใด]. In other words, the Criminal Court has given a legal and institutional gloss to the already normalized use of violence as a strategy of political rule. —translator.  
The dismissal of the case in which Khun Abhisit and Khun Suthep Thaugsuban were defendants accused of committing premeditated murder which resulted in casualties in 2010 is a decision with both a past and a future. It seems as if all of the various pasts cannot be divorced from the future.
The decision not only liberates the two defendants from this criminal case, but also releases the soldiers who carried out the orders from possible criminal accusation as well. It’s true that the soldiers were following orders. But there were instances in which the conclusion that they acted in excess of the orders or in significant excess of necessity is credible. None of these soldiers, from those in the field up to the commanders who gave the orders to use real bullets, to use snipers, or to shoot indiscriminately into the crowd without choosing a target, are exempt from disciplinary action. These were entirely illegal orders. This is the case even though conditions for these orders may have been met, such these actions can be taken when there is a potential danger to the body or life of the person acting on the orders. At a minimum, was careful consideration taken in a given situation? The opportunity for soldiers to unnecessarily pull the triggers on their guns is one that easily arises. How strong a deterrent is there for a soldier to refrain from pulling the trigger? If there can be no deterrent, then the issuing of the orders is reckless. 
The Criminal Court (the Court of Justice) dismissed the charges against the primary defendants, who are those with the great power, because they deemed that the actions were carried out while they
held political office. This case will likely simply be discontinued, rather than continuing and extending to reach down to those who executed the orders. (I will not address how this analysis is legally erroneous. Many people have done so already, including the chief justice of the Criminal Court, whose dissenting view is present in the judgment.)
Without having to rely at all on an amnesty law, blanket or not, all of the soldiers who carried out actions in April and May 2010 are exempt from being investigated and examined for all possible offences. This is the case from the high-ranking commanders down to those who executed the orders in the field.    
When the case was transferred from the Criminal Court to the Supreme Court’s Criminal Division for Persons Holding Political Positions, it meant that the crime of murder has become a crime of politics. If the perpetrator holds political office at the time of the alleged offence, a crime of politics holds a penalty aimed only at restricting his right to be involved in politics. The Criminal Court’s view is that the massacre of people in the centre of the city by the people who held political office is merely a crime of politics. And when it becomes a crime of politics, the soldiers who carried out the actions have nothing to do with the crime at all.
Further, this case cannot be tried for a second time in the Court of Justice. Therefore, the only remaining path for this case is appeal. The families of the dead and injured will appeal, for certain. But the Court of First Instance adjudicated that they do not have the right to be co-plaintiffs. Therefore, the effect that the appeal will have remains uncertain.
The prosecution, which was not barred from appealing in the decision, necessarily knows well what the political implications of this decision are given the status quo of the NCPO in power. If the prosecution does not appeal, it will be understandable. But if there is a broad reaction of nonacceptance by society, the prosecution will then have to choose to appeal. This is understandable. 
Therefore, it is then possible that the use of violence to repress the people who demonstrated in 2010 will be treated the same as it has every time in the past. In other words, politicians (whether they come from the ballot box or the gun) who choose to use violence will get away with it as usual. Put another way, assassination of one’s political enemies with utter impunity remains a Thai political tool that possesses enduring efficiency.
This is the meaning given to the past by this judgment. But as we already know, the past-present-future are three periods of time that cannot be separated from one another. Therefore, the new meaning of the past following this judgment gives meaning to the present as well.
That is, there are no burdens of legal accountability to hinder the junta from using violence against protestors or those who disagree with the seizure of power. This problem lies in the future. That is to say, I cannot predict whether or not there will be any cases in which the NCPO will choose to use violence. But if there is violence, it will be a massacre worse than every prior one. This is because the perpetrators will not have to wait for any sort of amnesty bill. 
This decision has significance for the long-term Thai political future.
In the midst of the transformations which have taken place in Thai society over the last several decades, the elites may no longer remain able to set the direction of the political system. They will have to change in order to accommodate the advent of the significant numbers of the new middle-class. But the form of this change remains uncertain. What is certain is that it is unlikely to be smooth. What we — ordinary people as well as those in the ruling class that are cognizant —  should be concerned about is whether or not this lack of smoothness will involve a massacre. If a transition is made through violence, it will be difficult to avert the dismantling and destruction of the power and benefit structure at the roots. It will be impossible to escape violence if the transition is of this type. The violence would inescapably affect every matter and every person.
And as the decision has rendered it possible for any given regime to massacre the people without it being a usual criminal offence, therefore a regime in power which has the support of the military can choose to use this strategy with ease.
For these reasons, whatever features are contained in the permanent constitution, the army will be an important provision for the preservation of political power because it is an efficient, unrestricted tool of violence. There is no military in the world that maintains its importance to this degree without intervening in politics, or without using a coup to take charge of politics directly. Part of the army’s position has resulted from this court decision also.
The political space in every society is one important space that supports and makes it possible for transformation to take place. If this space is dominated by violence and massacre, a large number of people will create a new political space in order to afford themselves protection. But they will not ensure safety for the opposing side. Therefore, violence will become the only path for the contest between the political spaces. In the present, there is no jungle left for people to go set up an armed militia. And there is no great power that wants to intervene in Thailand via the instrument of an exile government. Terrorism is then what remains within this field of violent contention, such as we have seen in southern Thailand and in many other countries.
As much as it is possible to predict from the present, this is the future of the aforementioned decision.
As a person who has never studied the law at all, I have come to know that the interpretation of criminal law must rest upon the principle of what broad effects a given interpretation of the law will have on society, both in the present and in the future. Some guilty people may be able to enjoy impunity due to the inefficiency of the judicial process. But the principle that that an action is wrong, the principle that an action is dangerous for the entire society in the short and long-term, must not be destroyed because some people get away with committing the actions [without being held to account].
Translated by Tyrell Haberkorn