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When Orders Become Law

The National Council for Peace and Order (NCPO) explains that summoning people for attitude adjustment and detention is carried out in accordance with the law. I say the NCPO because this explanation has been repeated by the head, deputy head, and on down to the spokesperson.  In response to the increasing voices of opposition in society, the spokesperson further states that the NCPO is not selective in the use of this “law.”  No matter who you are or what side you come from, if you create confusion, if you obstruct the NCPO’s roadmap, or if you are a danger to national reconciliation, then you will be summoned for attitude adjustment and detention.
 
I am confused by the NCPO’s explanation.  I am well aware that the NCPO, which occupies the position of the ruler, may of course enforce the law strictly and indiscriminately. But what confuses me is whether or not NCPO orders, especially the order under Article 44 permitting arrest for attitude adjustment, are “law”?  
 
What is law? Decades ago, a famous professor of public law raised the question of the difference between orders of the state and orders of gangsters. He did not offer a direct answer. Instead, he implied that they are no different and referred to a French law professor whom he claimed shared this view.
 
Luckily, I am not a law professor. My view is that of a common person who thinks that there are important differences between the orders of the state and those of gangsters. There is absolutely no way to be confused and collapse them into being the same.
 
First, law must have the consent of those who are subject to its enforcement. I use the word consent in order to differentiate it from the action of simply allowing it to be enforced. The outsize fist of a gang boss may be able to compel his underlings to accept his orders with no possible evasion. But these underlings may not consent. Consent is therefore the most important factor in differentiating the orders of a state from those of a gangster.
 
In fact, if the gang boss often issues orders to which his underlings do not consent, the underlings may rebel and shift their support to a new boss. Therefore, in the long run, the orders of a gangster must more or less rest on consent. But consider the process of changing the figure of the boss. When the underlings withdraw consent, they rebel and fight until blood is shed in order to expel the old boss. 
 
A state that operates like a gang therefore cannot sustain itself indefinitely. Such a state constantly loses the power of production to those who use force to scramble for power. In the end, it will collapse. Look at history. There are a great number of states that fell because they were gangster regimes. Some say that Ayutthaya was like this at the end (Whether or not this is true, I am not sure).
 
Consent in the modern state comes from the democratic system and the social, cultural, political and economic mechanisms that aid the people in making informed and free decisions. However, this does not mean that the laws of ancient states were completely devoid of consent. 
 
Ancient states adhered to divine law in making laws. They issued laws in line with the ideas of justice that were held to be universal during that time (such as Roman law). They were issued according to rules that were taken to be inviolable “tradition,” or in the case of Thailand, the rulers claimed that the laws followed the dharmasastra. The people believed, or were made to believe, that these rules were benevolent in perpetuity.  (Some people in the judiciary today still hold this belief.  This has reduced the importance of unified accord to the law). 
 
Simultaneously, rulers of ancient states issued other orders without seeking the accord of the ruled. They claimed that these orders were extensions of the dharmasastra or other universal rules. This was partially true and partially false. Examined over the longue duree, the security of ancient states was not comparable to that of modern democratic states.
 
At present, Thailand still has a constitution, but it is one that was promulgated by a junta and is accepted to be “temporary.” Even though there are some tenets from modern day Thai rules of governing, such as recognizing the rights and liberties of citizens at one level, this constitution contains Article 44, which is equivalent to having another constitution superimposed upon it. The junta can do anything at all without having to consider the measures stipulated in other laws. They can even change the form of rule in Thailand to whatever they wish. Therefore, Article 44 is not only a threat to the security of individuals, but is simultaneously a threat to the state. 
 
I am well aware that the charters and constitutions of many other juntas have contained this kind of measure. But other juntas have been sparing in their use of it. Such measures erase the difference between the orders of the state and those of criminals and in so doing, destroy the state’s legitimacy. So the junta attempts to ground their orders on other articles of the constitution instead. Article 44 is a peculiar power, a bit like a tasty dessert.  If you exercise Article 44 often, similar to gobbling a delicious dessert, it will soon be consumed. When the junta decided to revoke martial law and use Article 44 instead, I thought “fine.” Martial law, at least, has been used in Thailand for a long time. Even though there was not widespread consent to martial law, its use was accepted as fate, like the rain falling and the sun shining. Whether you like it or not, the rain has to fall and the sun has to shine. But Article 44 is not like this and cannot be used in place of the authority of martial law because it infringes upon the consent of the people too much. Therefore, when the junta made such a decision, I thought “fine.” As for “fine” in what sense, come to your own conclusion.
 
The second point is that it is possible for orders of the state to be laws. These orders must possess a clarity such that what constitutes a violation is apparent and there is no need for individual judgment. But take a look at the order of the NCPO issued under Article 44 that provides the authority to arrest and detain individuals. How clear is this order? Individuals who have created confusion, who have fomented conflict, or who are a danger to reconciliation or to the roadmap may all be arrested and locked up for attitude adjustment. In addition to the lack of clarity of the nature of the violation, the question of whether or not a violation has occurred rests entirely on the consideration of those who hold all the power. Whenever the law is unclear to the degree that it relies solely upon the judgment of those who hold power, then its enforcement can only ever be selective.
 
Even though the spokesperson and the head of the NCPO maintain that this order is not enforced selectively (this is another important characteristic of law), whatever their intention, there is no way to avoid acting selectively in practice. This order is most certainly not a law. Its ambiguity and lack of clarity leave the mood of the head of the NCPO as the only remaining criterion for its use.  
 
The third point is that for an order to become law, those who are punished under it must undergo examination via a recognized judicial process. The arrest and detention of individuals according to the NCPO order is made on the basis of an accusation by the head of the NCPO (or an individual assigned by the head to perform this duty). This is judgment by the accuser and punishment by the accuser. This is not any kind of recognized judicial process. This is no different than the order, judgment and punishment by a gang boss. 
 
What does a recognized judicial process entail? I would like to first reiterate that even ancient states accepted this process in principle. This is the case even though the judicial process was not as rigorous as it is at present and there was no outside monitoring of it. 
 
A recognized judicial process includes the following: 
 
The identity of the accuser must be public and s/he must make the accusation explicitly. S/he must demonstrate what laws the accused has violated, and how.  
 
The accused must have the right to protect her/himself with a defense. S/he must have the right to bring evidence that refutes that presented by the accuser. In old times, the accused had the right to challenge the accuser through trial by drowning or fire as well. These are the inalienable rights of the accused that even ancient states acknowledged.
 
Both the accuser and the accused must accept the decision of the neutral person who serves as the judge, who must be truly neutral. It cannot be simply that s/he lacks (or attempts to avoid the influence of) social, political, economic, ethnic, class, or cultural biases that may cause her/him to lean to one side. The judge must strictly adhere to the process of examining a case (what we call procedure in the present). This is an efficient protective armour against personal prejudice. (In ancient states, this may have been left to ceremony. Some of this ceremony remains used in the court, such as the slipping on of a gown.) The judgment and punishment must adhere strictly to the law as well.
 
A judicial process becomes acceptable by being audited at every stage. Trials must be open to the general public. In addition, the political and social system may create other mechanisms for monitoring, and therefore further enhancing, the judicial process. 
 
For this reason, the orders of the NCPO are therefore not law. The content is not legal. The exercise is not legal. The process is not legal.  Claiming that the law is used unselectively does not make it legal, because as I have explained, the content means that its use cannot be anything but selective.  
 
I am well aware that a not insignificant number of Thais think that whatever is announced in the Royal Thai Government Gazette (RTGG) is law. The RTGG is a kind of book. It has an editor in charge. This editor is one with less decision-making power than editors of ordinary books, because s/he cannot perform the actual role of an editor. The function of the RTGG is to collect, disseminate, and preserve the orders of the state. But, given that the orders of the state may be no different from the orders of gangsters as noted by the professor of public law … the orders of the state that are contained in the RTGG … perhaps may not all be laws. 
 
When we speak of the rule of law, we do not refer to a state that rules with the RTGG. But we refer to a state that rules according to law, or what is called in English, the rule of law, not rule by laws. The exercise of the rule of law is not rule by what is contained in the RTGG. 
 
My view may cause confusion for some readers. But I have to confess that if so, then I am very pleased. If people believe that what is in the RTGG is not law, then they are truly confused. Once they are confused, then they will begin the search for that which is true and correct. In the end, they may arrive at a rationale that differs from mine. They may decide that the idea that what is in the RTGG is law is correct. But having a rationale is better than possessing unthinking belief. 
 
Such confusion is the beginning of knowledge. It is certainly not a crime!
 
 
Translated by Tyrell Haberkorn.