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Nidhi Eoseewong: The Murderous State

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 was 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 have 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 able to read Thai, the dissenting opinion can be read in its entirety as part of this article in ข่าวสด].

Shortly after the Criminal Court dismissed the case, noted historian Nidhi Eoseewong wrote a critique of the decision to do so and placed it within the contexts of both the historical failure to hold perpetrators of state violence to account and its potential effects on the future. In this essay, “The Past-Present-Future of the Court’s Decision”/ “อดีต-ปัจจุบัน-อนาคต ของคำพิพากษา”, Ajarn Nidhi offered an acute, and unsettling observation on the meaning of the political: “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.” What this means is that through their refusal to examine the case, the Criminal Court gave a legal and institutional gloss to the already normalized use of violence as a strategy of political rule.

I read this essay as a companion to the earlier one. In “The Murderous State,” originally published in early July in Matichon Weekly, Ajarn Nidhi links the court decision to a discussion of the strength of the state, the ease of state murder when the state is weak, and the normalization of state murder over time. Writing in the context of the arrest of the fourteen student activists of the New Democracy Movement at the end of June, and addressing the people rather than the Criminal Court, he traces the histories of state murder and the presence, or lack, of restraint upon the state. He concludes by urging his readers against complacency and writes, “every one of us of every political persuasion must work to make the choice of murder by the state into one that cannot be chosen, or one that if it is chosen, will cause the state to be worse off and fall to pieces.” —translator.  

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After the massacre of the people in 2010, I heard some say, “If [we] had not killed [them], [they] would have been left to cause greater damage to the country.”

At that time, the inquiry into the matter of the “burning down of the city,” the setting fire to one large shopping center in particular, had not yet begun. Therefore, the speaker perhaps meant that, if left loose, the red shirts might engage in further “burning down of the city.” But even supposing that the subsequent inquiry and judicial process had substantiated that the red shirts were those who set fire to both private and state buildings, I still think that the state murder of the people caused greater damage to the country than the loss of the buildings that were burned down.

This is because when the state kills the people indiscriminately, no reason remains for us to assemble as a state. At a very fundamental level, each one of us is part of the state because we trust that this form will provide us with the greatest freedom from harm. Outside the boundaries of the state, we may easily be violated and our lives easily taken. Outside the boundaries of the state, there are no mechanisms to punish the act of murder and therefore no instruments to suppress murder.

The state therefore cannot murder. Or there must, at a minimum, be detailed regulations governing the act of murder by the state in order to serve as a check and restraint on it. Murder by the state is more dangerous to the masses than a man killing his wife, a robber killing his victim, or even a terrorist killing a crowd.

This matter is unrelated to either the color of one’s shirt or whether a regime is democratic or dictatorial. If the state is to retain a sufficient threshold of existence, then it cannot engage in the murder of the people.

I am thinking about this issue due to the recent movement by the students from Dao Din, the Liberal League of Thammasat for Democracy, and other groups. If you believe that the student movement has (odious) people behind it, then you may believe that the arrest and detention of the students and the hunting down of those behind them will perhaps subdue the movement. You may believe that they will be unable to find additional people to stand behind them.  But if you believe that student movement is born out of conscious, freely-chosen actions, then you will know well that the arrest and detention of the students or those who are accused of being behind them will fail to halt their open and direct opposition of dictatorial power. This is likely only the beginning and the future is forbidding for all sides.

I believe the latter.

Therefore, I worry that as this movement expands, the state will again murder as it has done many, many times prior. This is not because the state is stupid, or has not learned the lesson that public mass murder severs every last remaining iota of the foundation of their legitimacy completely. But they may murder because they have no other choice. Those who hold power, whether they are soldiers or civilians, tend to turn to murder when they run out of other political choices.

Think about it: faced with the choice of announcing the dissolution of parliament and holding new elections or murdering the people, the civilian government [of Abhisit Vejjajiva] still chose murder. In spite of this, when they lost the elections [in 2011], they did not have to face accountability for any of their crimes. Will a government that has come from a coup accept the end of their rule along with a multiplicity of punishments to account for their crimes?

Murder is the therefore a frequent choice of the Thai state. Murder is too easily chosen and the aspects of Thai culture that may restrain the state’s impulse to murder grow weaker and weaker in turn.

Murder is an instrument of power of outmoded states, including the Thai state. A state is not able to kill people as it wishes because it is strong. On the contrary, ancient states killed people as they wished because they were weak. They used public murder as a pedagogy of tyranny to teach their subjects to be afraid of the state. A range of horrible killing methods was used to ingrain fear into the hearts of the subjects.

In what way is the murder of the people an instrument of a weak state? Let me offer the revolt of the Isaan people, or as it is known, the Phi Mi Bun Rebellion, as an illustrative example. During the fifth reign, a group separated themselves off to make a new village with a new social order not under the control of the state. They were very easily suppressed, particularly in comparison with the Saya San rebellion in Burma, which involved a larger number of people. The state could have simply dispatched soldiers to surround them until they ran out of provisions. They would have had to willingly accept defeat. But the government during the fifth reign did not possess sufficiently modern forces to act in this fashion. In addition, they had to swiftly put down the rebels in order to avoid giving the great powers a reason to intervene.  These reasons all emanate from the weakness of the state, and therefore they chose to use violent suppression.

The violent tactic they selected was to send their small modern army to suppress the rebels. They fired large modern weapons upon them and the strength of the explosions caused bodies to bound up into the air and fall to the ground as corpses. The villagers were out of avenues of struggle and fled in chaotic disorder.  All that remained was for the soldiers to chase and capture them in groups  … the end.

Even though having a modern army means that the state has a monopoly on violence, public execution still takes place. Public execution is used to make the citizen-subjects afraid. Once the transformation [from absolute to constitutional monarchy] took place, execution moved into private.  But public execution returned as a method to intimidate and create once again when Sarit Thanarat [1958-1963] seized power.  

The people were once again massacred in October 1973. But Thai culture had developed to a point at which open murder by the state was no longer accepted. Those who ordered the killings became known as the “three tyrants” [Thanom Kittikachorn-Narong Kittikachorn-Praphat Jarusathien].

Perhaps because that cultural power remained in Thai society, those who planned the massacre three years later [on 6 October 1976] attempted to paint it as the work of loyal citizens. This is notwithstanding that the attack and taking over of Thammasat University necessarily depended on state officials and state weapons. For example, there is a photograph of a uniformed police officer who has a cigarette hanging out of his mouth and is pointing a gun in front of him (the Thai Health Promotion Foundation would oppose his smoking as more dangerous to health and society than murder by the state). Those who seized power during the coup on the evening of 6 October 1976 denied any involvement in the massacre that took place that morning (Yet they raced to immediately issue an amnesty bill).

At least until 6 October 1976, state murder still had to be carried out in a concealed fashion. They did not dare to do it brazenly in the open.

The massacre by the state in May 1992, even though it was not concealed, resulted in those who were involved having to cease their political role entirely. Further, the event created a realization among the Thai public that made it possible for the government of Anand Panyarachun to expediently remove high-ranking soldiers.

I should also mention that ever since the Communist Party of Thailand turned to armed struggle, the state has continuously murdered the people. These murders were not open, or were made to look as if there had been armed struggle with an “enemy” who also had a weapon. In truth, a large number of unarmed people were brutally killed. This included bombing hill tribe villages with napalm, throwing people out of helicopters in order to silence those who were tortured while they were interrogated, and arresting and burning people alive in red drums. But when these murders were revealed after 1973, they were not accepted by Thai society. This indicated that the culture that had restrained murder by the state in Thai society still retained some strength.

But the power of that culture was weakened greatly during the state massacre in April-May 2010. At the very least, the view of a large number of citizens was that the killing of the people by the state caused less harm to the country than the burning down of a shopping mall. Murder by the state was not a bad thing in and of itself. There were still some conditions under which it was not considered depraved to kill. Therefore, there are conditions under which the state may perhaps massacre the people in whatever which way.

The Court of Justice ruled that the murder by the state in 2010 was not within its jurisdiction. This then made the murder a political offence rather a criminal offence, as it is normally. This is tantamount to expanding the conditions under which the state may kill. The political conditions inevitably stretch to give the state the legitimacy to kill in many other situations … until restrictions can hardly be found. This ruling therefore amounts to the placing of a curse on Thai society that the day of wriggling free from perpetual state murder will be permanently deferred.

In sum, the Thai cultural and the judicial apparatuses have grown weaker and weaker in the struggle with state murder. This constitutes a profound loss for our country.

The modern state possesses a great amount of incomparable power. The doctrine of Dhammaraja may be a bridge to nirvana or may have had the power to restrain the vile exercise of power by the ancient state that was unable to amass power in the overflowing fashion practiced by the modern state. But because the modern state has surplus power, and there are not solid regulations to keep the state under control, either regulations about the accession to power or the exercise of power, the people must cooperate to force the state to strictly follow the rules. They must not easily surrender to justifications offered by the state. If they surrender easily, it will lead to another massacre of the people in order to prevent a building from being set on fire.

This is the reason why the Attorney General must appeal the ruling of the Court of Justice regarding the case of premeditated state murder in 2010. This matter has become quiet and I do not know whether or not the Attorney General appealed as they announced they would. If they did not appeal, I do not know if they have run out of time to do so. If this case is not appealed and it falls away, jurists need to think together about how to bring this case back to trial within the judicial process.

Even though this unfinished case may not be able to reach those who ordered the brutal killings, it is important. This case could be a starting point to be able to reach them in the future. It would count as the first case of murder by the state in which we are able to use the judicial process to hold the perpetrators to account. Each soldier who took action during the massacre in 2010 held power in his hands. Consequently, if all of them get off scot-free, they will become those who will order murder once again without any thought or hesitation.

My view is that by the same principle, we should abolish the death penalty. Statistics from various societies around the world prove that the death penalty does not aid in suppressing violent crime. We should not allow there to be any conditions under which the state is permitted to kill the people. Murder by the state is a crime under every circumstance. If state officials kill people to protect their own or other peoples’ lives, there must be a process of strict auditing by an outside agency to determine whether or not it was a situation beyond control that could not be avoided.

A person who carries a knife into a police station in order to attack an official does not need to be shot and killed. Instead, the person can be shot in order to disable his capacity to attack.

In every instance in which the state kills, it must be proven without a doubt that legal murder is truly lawful and there was no way to avoid it. If the state no longer retains the authority to murder, I believe that state officials can lawfully kill, but if and only if they are circumspect and employ careful judgment.

In a critical time like this, every one of us of every political persuasion must work to make the choice of murder by the state into one that cannot be chosen, or one that if it is chosen, will cause the state to be worse off and fall to pieces. There is nothing more important than this. State murder in the hands of a dictator poses a grave danger [to society].

Source: นิธิ เอียวศรีวงศ์: รัฐฆาตกรรม : มติชนออนไลน์

Translated by Tyrell Haberkorn.