SOAS’s Rule of Law in Thailand Project - Part 1

In SOAS’ Centenary year, the Centre of East Asian Law (‘CEAL’) at SOAS, University of London launched the Rule of Law in Thailand Project with a Panel Discussion and Reception on Friday 26 February 2016 in London.

In SOAS’ Centenary year, the Centre of East Asian Law (‘CEAL’) at SOAS, University of London launched the Rule of Law in Thailand Project with a Panel Discussion and Reception on Friday 26 February 2016 in London.

The project seeks to engage academically with definitions of the rule of law and legal issues in contemporary Thailand such as constitutional change, the justice system, human rights and broader issues that affect social ordering from family law to environmental protection. Its aim is to encourage research on the law in Thailand, and support the efforts of early career researchers and PhD candidates who are working on issues relating to the rule of law in Thailand.

Further information about the work of CEAL and the project can be found online or on Facebook. Highlights of each seminar will be reported on Prachatai.  

In the first of the series, the panel discussion featured Prof Sir Jeffrey Jowell KCMG QC from the Bingham Centre for the Rule of Law, Prof Tim Forsyth from LSE, and Prof Peter Leyland from SOAS.

 

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Transcribed Excerpts from Panel Discussion

Definition of the rule of law

Professor Sir Jeffrey Jowell KCMG QC (00.13.34- 00.16.32):
 

So, what is the rule of law?

First of all, the rule of law requires legality. Legality means that we are all under law and not under arbitrary power, the power of the tyrant. We’re under law and not man or woman. And this includes the obligation of all public officials to make these decisions about our lives all the time, to act within the limits of their conferred powers. They don’t have infinite discretionary powers either. So, that’s legality.

The second aspect to the rule of law is certainty; that law should not just change all the time. It should be relatively certain, shouldn’t it? It may change, of course, but only after fair warning. And this is so we can all plan our activity. And we’re not confronted by law that is then applied retrospectively and you are put in jail perhaps for a law that you didn’t know existed or couldn’t know it existed. Perhaps it didn’t exist before it was applied to you.

So, there’s first of all legality and then there’s legal certainty.

Now those two aspects of the rule of law are the formal aspects. So, there’re a number of countries claim that they’re under the rule of law because they have a rough legality and they have legal certainty. And so China may be one of those countries. And in South Africa during Apartheid they kept very much to the letter of the law even though the law was harsh and unjust and discriminatory. And they said “we’re acting under the rule of law as China does”. But I call that the rule by law, not the rule of law. Because the next two elements of the rule of law are not there. What are those two additional elements?

Firstly, equality: that law should be equally applied to the rich and the poor, to the powerful and to the marginalised or the weak. And underlying that notion, there is a deeper level of equality which requires equal concern for everybody’s human dignity.

And then finally the fourth element to the rule of law that really brings it to life is what we call loosely access to justice, so that you could actually challenge decisions that they made about you in a fair way. So, you have fair trials and an independent judiciary which is absolutely crucial.

 

Rule of law and the current process of constitutional drafting in Thailand

Professor Peter Leyland (00.40.30 - 00.43.34):

There’s been prevarication and delay by the present government. The drafting committee which is presently chaired by Meechai faces the charge that it represents the same elite. And that it lacks legitimacy as it was set up by the junta. The process of the drafting is taking place against the background of extreme repression.

The latest proposed versions have even more voluminous details. I’ve been looking through. I’m scrolling through on my computer. It took me ages…I thought, god.  They even have more and more sectors for this constitution. It is going to be the world’s record for longest Constitution beating India which has a very long constitution. And I was thinking oh my god. What am I going to do when we do the next edition of the book?

But anyway, I don’t think it’s going to last very long. Because the latest proposed version, they have a lot of the things that have been pasted and cut from other constitutions including an emphasis on anti-corruption and watchdog bodies and so on.

But all of this, of course, is subject to big qualifications. It allows the generals to take back absolute power, at any time, in the name of national security. That’s not a constitution, I mean, this is a joke. And it introduces more challenges in terms of making constitutional amendments which means, the argument is, you’ll be lumbered with it for longer. But my argument would be that the Constitution is going to find it very difficult to get through a hurdle of a referendum as a result of this.

So, there’s no sign of the new Constitution will de facto hand over power in a serious way.

It’s essential to break the mould which is seen, this cycle of the military taking over, and at the same time indemnifying themselves of many responsibilities or liability.

It seems to me incredibly ironic that the ex-elected prime minister is facing prosecution which relates to the policy followed by her government, allegedly failing to prevent alleged corruption associated with the rice subsidy. Corruption is bandied about in Thailand as a word used without proper definition in context. In consequence, the flagrant double standards, disproportionate punishment and things like this. The very powerful and rich always seem to escape justice. In other words, there has been an absence of the rule of law values at the top.

 

Social behaviour issues that co-exist with the rule of law issues  

Professor Tim Forsyth (00.57 - 00.59.48):

Despite the rice farmers voting for Red parties in the past, what was also interesting at the same time is the extent to which the Yellows began to court the rice farmers as their allies. Now on the cynically based point of view, this was simply because the rice farmers were thinking “Right, who can we get the best deal from the Reds who look threatened or the Yellows who are going to take over. But also at the same time, I’m arguing that the Yellows want to appear appropriate by cultivating the image of…that they are the friends of the rice farmers, they want to understand their pain. They want to represent them as poor victims of this corrupt government.

So, in the Yellow Shirt camp in Lumpini in central Bangkok, you suddenly get this procession of people wearing t-shirts, selling t-shirts, trying to ally with the rice farmers as victims and as poor. The image of the skeleton holding the sickle, Chao Na or rice farmer, people of rice fields, and the black t-shirt shows Mae Po Sop who’s the goddess of rice fields. And the t-shirt at the end saying that rice farmers deserve a better deal because they’re people in charge of the land and they know what are they doing, sort of essence. All I think here is the interesting shift of alliances which show how far the codes of conduct behave but also how far the hierarchy keep them reproducing themselves regardless of constitution change.

So, my final picture, this one, which I think it’s an extraordinary image of this lovely woman who gave me her permission to take this photograph. Middle class, Bangkok citizen, clearly in the Yellow camp because she agreed to the Yellow. She got a phone holder in yellow. Wearing the “Rice is Life” t-shirt which I’m trying to suggest here indicates the limitation upon the constitutional change as a source of remedies. What I’m suggesting here that you get the alliance of elites who are trying to cultivate allies among the poorer classes by both sides represent, reproducing this image of hierarchy and victimhood which maintains the social order rather than actually changes the social order. And both of them are buying into it because they both have seen political opportunity. But ultimately these are the things I’m arguing hold up a democratic change in Thailand which coexist alongside the questions of legality, equality and access to justice which you might get through constitutional change.

Question from the Bangkok Post: Can the so-called Thai-style democracy coexist with the rule of law?

Professor Peter Leyland (1.04.30- 1.06.58):

The problem in Thailand has been as I said towards the end of my presentation, that the idea that you can press or reset the button on the Constitution and the military can take over or whatever and that they are indemnified from anything that goes wrong. The idea of people who have abused power are not subject properly to the rule of law. These things to me seem fundamental to Thailand as they do to any country.

And the idea that Thai particularism can sort of defend those sort of practices, or not those sort of practices, but just be a kind of justification of the status quo which I interpret this as the present regime is just defending the status quo as it is saying that’s the Thai way of doing things.

It’s not that Thais are not being able to vote on that. They haven’t been able to be consulted or whatever on having the kind of rule they have at the moment. For that reason, I would say that it’s very difficult to know what can possibly be meant by this kind of Thai approach except that the current establishment view rules okay under all circumstances. That’s my interpretation of this. And that’s the Thai way of doing things. No, it’s not.

I mean if you look at it historically, if you go back a hundred years and you’ll see what was happening under different systems of law in Thailand, it wasn’t like it was today. Thailand has evolved like all other nations. And it continues to evolve. And as it evolves, I’m sure that the Thais will choose their own form of law but my argument would be that has to be chosen more widely, not according to how they’re dictated to by a narrow elite.

 

Question from Prachatai: Can the suspension of the rule of law by the Thai military junta be justified by the need to preserve law and order?

Professor Sir Jeffrey Jowell (1.09.43- 1.10.52):

The courts would allow it if the intervention was proportionate to the emergency involved. In other words you don’t have a total power to say for ever more we’re not going to allow this or for ten years or suspend parliament. But you can take necessary measures to preserve law and order, every society allows that.

There’s certain limit to that. For example, some societies, many societies, I would say, never to allow torture. Others would say perhaps a degree of torture. So, I think it is possible to argue that there’s a degree of possibility for a suspension of human rights, civil liberty and the rule of law in certain circumstances. But that suspension should not be an excuse for continuing arbitrary control of power for an indefinite period. There should be a constant review to see if an emergency might be over or some of the measures can be relaxed. And there’s a depth to which those measures should not be allowed to fall.

Professor Peter Leyland (1.12.27 - 1.13.09):

My point is a solution in Thailand, even if it’s a partial solution, needs to be adopted by all the people who are all going to be subject to it, Red, Yellow, Green, whatever they happen to be. And until that situation is reached, the Constitution won’t really work. But I would just agree with what Jeffrey said that a military solution could only be justified in the interim. It’s not in emergency circumstances. They cannot be seen as a solution to all.

Professor Tim Forsyth (1.13.19 - 1.13.59):

If there is an obvious crisis then whatever has to intervene to deal with it has to be seen to be trusted and fair. One can think of examples, the second World War in Britain, for example, the national government, people trusted it because the circumstances, you know, what’s going on in Thailand I think is proving to be not trusted and not creating the sense of open opportunity which people would want to have in order for the definition of rule of law to take place.

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