When elephants fight

When elephants fight, the law books get trampled underfoot

By Chang Noi
The Nation,23 June 2008

Two years ago, the rule of law and judicial process were pushed forward as solutions to a crisis created by the clash of three great powers—established authority, electoral legitimacy, and business wealth. As the crisis has deepened over recent months, it looks very uncertain whether law and justice will prevail. Indeed, much more likely, they will be pounded and emasculated even further. We need to rewrite the proverb: when elephants fight, the law books get trampled underfoot.

Under a rule of law, law codes have moral authority in their own right, and judicial officers have authority and independence as interpreters and enforcers of those codes. This idea has never taken root in Thailand.

It was not part of the traditional political culture, where law was simply a handmaid of power. Those with authority based on official position or informal might had the right to sit in judgement and hand out rewards and punishments as acts of will. The old law codes were little more than collections of old judgements by such powerful figures. Unsurprisingly, these collections were full of inconsistencies because the judgements were made by different arbiters, in different eras, and under different circumstances. It’s doubtful whether the codes were much used in practice to guide future judgements. They were historical records, rather than codes for everyday consultation. Each new judgement was a new act of political will, another exercise of political authority.

As such, old Siam did not really differ from its neighbours. But elsewhere, colonial rulers put a lot of effort into establishing judicial systems as a key part of their control. For better or worse, much of these structures survived decolonization. Siam’s experience was rather different.

In the Fifth Reign, the Siamese elite imported many elements of the colonial system including a central bureaucracy, standing army, codified laws, and new judicial practice. But there was a crucial debate over the legal system.

Prince Ratchaburi backed a British-style system based on common law and juries. Arguably it was more in line with Siamese tradition of case law evident in the old codes. But King Chulalongkorn overruled his brilliant son. The king’s priority was to create a legal system which foreign powers would trust, so the foreigners would stop insisting on having their own courts that infringed Siamese sovereignty. For this reason, Thailand ended up with a Roman-law style system based on written law codes and interpretation by professional judges.

The king was right. This system helped to persuade the foreigners to surrender extraterritoriality. But it willed Thailand a legal system that never really took root. The initial law codes were first drafted in European languages by panels of international advisers, and only later and with difficulty translated into Thai. Though subsequent revisions made the codes clearer and more domesticated, the practice of law has remained a strange technical art rather than an integral strand of the social and political culture. Rulings tend to follow the letter of the law rather than the spirit. Legal education is narrowly technical. Lawyers and judges are not educated about the social context. While senior judges count among the elite of society, the legal profession as a whole has very questionable social status.

Today, law is still the will of the powerful, rather than being an independent force with its own moral authority. Opinion surveys show that ordinary people have relatively little faith in the judicial process. They expect money and influence to prevail. In today’s politics, lawsuits have become one of the many techniques of political competition. Where once you hurled firecracker-bombs into rivals’ house compounds or handed out anonymous pamphlets with lurid allegations, now you lob defamation suits and legal complaints by the truckload. In the press and public discussion of these matters, the issue is not who is right, but who has the power to win.

Since April 2006, the role of law and judicial process in politics has dramatically changed through a series of historic decisions. An election nullified. Members of the Election Commission jailed. The country’s largest-ever political party dissolved. The defamation cases against Supinya thrown out. The Shinawatra family assets frozen. Among politicians, generals, police chiefs, leading bureaucrats, prominent media figures, and judicial practitioners themselves, it is hard to find anyone who has not sued or been sued many times. In public debate, the only people now who can make themselves heard, other than astrologers, are professors from the law faculties in various universities. Law is now very much part of the game of power.

And what a game. After the September 2006 coup, the generals forsook the traditional methods for dealing with their targeted enemy, and instead left that job to law and judicial process. Though it started slowly, the Assets Examination Committee (AEC) has finally launched a judicial assault with a staggering volume of paperwork.

The Thaksin camp has responded with equal aggression. It has tried to junk the constitution so the whole work of the AEC can simply be invalidated. It has shifted key people in the police, judiciary, and related institutions. It has placed roadblocks along the line of judicial process so that cases which the AEC hand in at the front door of the relevant authority are soon tossed out the back. It has made creative use of delay. It has sprayed its opponents with harassing counter-suits.

This is not about law. There is a camp arguing that the AEC has no legitimacy because it arose from an illegitimate coup. There is another camp arguing that the Thaksin camp has no legitimacy because it flaunts law with money. Both arguments are painfully irrelevant. This is not about law or legitimacy but about power.

At present, the probable outcome of Thailand’s judicialization will not be giving law a bigger role in politics, but giving politics a bigger role in the practice of law.