When the beauty of democracy is not so beautiful

By Chang Noi

Published on December 22, 2008

 

THE OVERTHROW of the PPP government was justified on grounds its electoral success was based on vote-buying and hence illegitimate. Now the Democrats have been wafted into power by the divine intervention of Newin Chidchob. Should we laugh or cry? Newin is allegedly Thailand's most famous vote-buyer.

In 1995, police raided a Buri Ram shophouse and found Bt11.3 million in small denomination notes, some stapled to a campaign flyer for Newin. These facts are not in doubt, nor (for most people) is the interpretation. But the election law is rather like the prostitution law. Police have to catch the client both engaged in the act and paying the money at the same time, which is technically a bit difficult. Judges convicted the shophouse owner, thus confirming that vote-buying had taken place on behalf of Newin. But they excused the man who had benefited on grounds there was no direct evidence of his involvement.

 

In a tape transcript allegedly recorded in Songkhla in January 2005, someone addressed as "minister" proposes "we will buy everything everywhere" to overtake poll rivals. "I'd like to challenge all of you from these 25 tambons in this way. If Thai Rak Thai wins, I'll give each tambon Bt100,000. Will you be able to take my money? I'll leave the money with the governors.

 

"On the morning of February 7, come and take it if we win. Take the money first, and we'll take care of the yellow and red cards later. Get the winning votes, then come to collect the money from the governors, and go celebrate."

 

The press identified the voice as Newin. He was the only minister in Songkhla at the time. This attempt at wholesale vote-buying failed, but Newin escaped again. The Election Commission, firmly under Thaksinite influence, ruled that the tape-recording was "indecipherable" even though various Thai newspapers transcribed it word for same word.

Politics has no use for irony. But the role of Newin has big implications for the incoming government. Newin's nominees hold the balance of power in Parliament.

 

Newin has been a prominent figure in Thai politics for over a decade. He has been a minister for much of that time (sometimes through a nominee). It is hard to think of an achievement of national benefit from that time in office. It is even harder to think of any speech or statement by Newin about his political vision. Perhaps his best-remembered quote came after another court case when he narrowly escaped being banned from Parliament. He praised the judges' narrow 7-6 split-decision as "the beauty of democracy".

 

He was Agriculture Minister through the Thaksin era and the resulting scandals are just reaching the courts. Earlier this year, Mingkwan Saengsuwan secured a huge budget for rice price support and then woke up next morning to find the project had been ripped from his hands by Newin. The price of his support for the current government has been very high. The Communications Ministry has the largest and chunkiest capital budget of them all. The Interior Ministry is the single most powerful ministry, and many of those powers are marketable. This truly is the beauty of democracy.

 

What does this portend for the Democrat-led coalition?

 

The installation of the Abhisit government has been an action replay of Chuan II in 1997. With an economic crisis looming, pressure from the army and business, fractured parties in the ruling coalition allowing the Democrats to stitch together a government, rewarding the splitters with plum ministries. A key figure in that split was Vatana Asavahem, now a fugitive from justice after conviction for massive corruption. After two in a row, this is confirmed as the Democrat Party route to power.

 

But as a guide to the prospects for the Abhisit government, Chuan I looks better than Chuan II. In 1992, the Democrats headed a coalition formed in the aftermath of the May 1992 political crisis. The crisis had stirred up hopes for reform and progress in many forms, and these hopes were riding on the Chuan government. Similar hopes are now riding on Abhisit.

 

The Chuan I government did a relatively good job with the economy. It reformed taxation, brought down tariffs, pushed for the Asean Free Trade Area, and completed reforms of the financial sector begun under its predecessor. The economic impact of the 1992 political crisis was minimised because Chuan's economic team was credible, foreign confidence was restored, and domestic business cooperated with government plans. Growth revived after only a small dip.

 

But other hopes for reform in the constitution, local government, judiciary, media, social policy, and the bureaucracy were sadly disappointed. In almost every case, the pattern was the same. Conservative forces were able to manipulate the minor parties in the coalition to undermine proposals for reform. Because the Democrats depended on these minor parties for its majority, it was repeatedly vulnerable to this political blackmail.

 

Management of the fractious coalition sapped the government's energy and ultimately brought the Chuan I government crashing down in a slew of corruption scandals. The finale was the SPK-401 land scandal, which involved several Democrat Party members, but there were many others involving the coalition partners. One coalition MP was indicted in the US for smuggling massive quantities of marijuana from Isan. Two others were denied US visas for suspected drug involvement. Another was embarrassed by the discovery of an illegal casino in his house. A minister was suspected of masterminding a boom in oil smuggling. Several government-related figures were involved in land scandals.

 

The way these scandals were exposed may also be a guide to this government's fate. It was not the NGOs, academics, and other whistle-blowers that delivered the killer blow but a group of young politicians. Judging by their involvement in scandals under the following Banharn and Chavalit governments, they were not interested in cleaning up corruption, but taking it over. Newin was one of this group. But then that is the beauty of democracy.

http://nationmultimedia.com/2008/12/22/opinion/opinion_30091546.php 

 

The evolving anatomy of PAD

15 september 2008

By Chang Noi

Head. The key strategists appear to be three old soldiers – Chamlong Srimuang, Phanlop Phinmanee, and Prasong Soonsiri, prominent veterans of the battles against communist insurgency, and part of the shadowy legacy of Thailand’s era of military rule. They are dedicated to the defence of nation and monarchy against all threats, particularly from the citizenry. Phanlop has publicly boasted of overseeing assassination of communist sympathizers in the 1980s, and unleashing the Krue Se massacre in 2004. Prasong has long been linked with projects to influence politics in curious ways. The coup generals and serving military officers like General Pathomphong Kesornsuk have given open support and protection.

Bloodstream. Prominent leaders of modern business have attended rallies. Others are passionate in support. Business associations conspicuously protested not against the violent invasion of Government House, but against the Emergency Decree that followed. Such business leaders have normally intervened in politics only when the economy is threatened (e.g., 1992), but now are supporting a movement that courts massive economic damage. They turned against Thaksin for favouring his own family, a close circle of cronies, and several financial figures heavily implicated in the malpractice which contributed to the 1997 crash. These same figures have resurfaced under Samak. This business faction believes support of PAD is a means to prevent even worse damage to the economy.

Legs. State enterprise workers have carried out selective strikes to signal the PAD’s potential for disruption. These workers have a long history of organization and political involvement. Over the long term they are committed to preserving a privileged position in the labour market. In the 1980s, they were closely allied with various military politicians, but this link was broken by the 1991 coup-makers. The workers then networked with other civil society groups to resist projects of privatization by both the Democrat and Thaksin governments. Since the 2006 coup, they have again been courted by the military.

Lungs. Some elements of the activist fringe of academics and NGOs – including some who have graduated to the senate – support PAD as a means to reform the political system which they argue is corrupt, un-representative and inefficient. In the 1990s, these groups campaigned for the 1997 constitution, decentralization, education reform, and the shift to people-centred development planning. In the early 2000s, they cheered Thaksin’s promise to harness the bureaucracy and close down the godfathers. Many supported the coup and now the PAD in the hope this will provide space for reform. The new activism among students is partly an extension of this tradition.

Mouth. Sondhi Limthongkul and his media empire have significantly extended public space and brought new groups into public politics. Sondhi has broken the state’s tight control over broadcast media with the help of new technology and (supreme irony!) the success of the old media barons in disrupting the establishment of a new legal framework of control. Sondhi has created a new political theatre which is both entertaining and involving. Like the US political conventions, the PAD rallies offer a quasi-religious experience of belonging to a cause, heightened by the self-mortification of sheltering from monsoon storms and queuing for the toilet. Sondhi has dedicated himself to “politics for the middle class,” exploiting the long-growing fear of piratical capitalism on one side and populist democracy on the other. This message appeals to a blue-blooded elite which feels its economic interests are threatened. It also appeals to the delicate combination of pride and insecurity in a new elite that has ascended to “high society” and the old “aristocratic” occupations (bureaucracy, military, professions) over the past two generations. The PAD’s most popular collectible has been a T-shirt emblazoned with “Sons of China defending the nation.” Many of these new recruits to public politics are middle-aged women, but the catchment is much wider.

Hands. Members of the Santi Asoke sect are participants and service providers. In the late 1980s and early 1990s, members of this semi-outlawed sect supported Chamlong’s crusade for cleaner politics. Subsequently they have been limited to occasional agitations on moral issues.

Spleen. The Democrat Party has effectively aligned itself with PAD. Quite extraordinarily, the party has failed to make any condemnation of the PAD’s desecration of the symbolic centre of national government (contrast the party’s stance to the Assembly of the Poor’s demonstrations a dozen years ago). Korn Chatikavanij has justified the party’s support as necessary to prevent the rehabilitation of Thaksin.

Teeth. Demonstrations always have a guard unit, but that of the PAD appears much larger and more aggressively armed than has been the norm (again, contrast the Assembly of the Poor). Some of the guards are state enterprise workers, but others are hired hands recruited from the city’s floating population of casual labour, especially “ex-policemen and ex-military” (Sondhi Limthongkul). Judging from the seizures last week, the weapon of choice is the used golf club. These exquisitely engineered implements for an expensive elite sport have metamorphosed into heavy lumps of metal with a useful handle for causing injury to a fellow citizen. What symbolism!

There is more (especially in the background). Many different groups that have woven separate ways through the kaleidoscopic politics of the last two decades have come together in the audiences for the PAD’s rallies and ASTV broadcasts. The foreign press has tended to portray the current polarization as urban against rural, and as a desperate, declining elite against the capitalist populism of Thaksin. Those formulas have a core of truth (and are utterly forgivable given the difficulty of explaining what is going on), but tend to over-simplify PAD, and over-idealize Thaksin.

Variety gives PAD its current force, but may limit its ability to move beyond demonization to constructive reforms.

The distinguishing features of the movement are its wealth, its explicit and implicit use of violence, and its magical protection against threats, including police actions, court orders, and legal process. On all these aspects, contrast the Assembly of the Poor rallies, the only prior campaign of comparable scale. These are the politics of class and privilege.


( http://www.geocities.com/changnoi2/anatomypad.htm )

vote-buying and the “patronage system”?

What’s the problem about vote-buying and the “patronage system”?

1 sep 2008

By Chang Noi


Over the last couple of years, concern about vote-buying has been on the increase. The story goes like this. Voters upcountry are too poor and too poorly educated. Some sell their vote for spot cash. Others are victim of “the patronage system” and obey the instructions of a patron on how to vote, in return for continuing patronage of various kinds.

The argument then continues: vote-buying and the patronage system mean that one-man/one-vote elections cannot work in Thailand. There needs to be some “Thai-style” alternative. This might be some corporatist method of representation such as the PAD proposed. It might mean diminishing the power of the elective parliament, and returning more power to the bureaucracy.

According to legend, vote-buying began in spectacular fashion in Roi-et in 1981, engineered by people in the military. It then swelled over the following two decades. At election times, banks calculate massive rises in money circulation, and journalists love describing complex systems involving lotteries. A brilliant study done in Ayutthaya in the mid 1990s showed that monks, gunmen, and local officials were all deeply involved. Vote-buying is part of the political culture; of that there is little doubt.

But vote-buying is not a simple matter. The practice has been in place for a quarter-century. The number of elections has multiplied—for parliament, senate, municipality, provincial council, subdistrict council, and so on. Thais have become some of the most experienced voters in the world. There has been a lot of learning about how to use the vote.

In the early history of Thai vote-buying, candidates thrust red notes into voters’ hands in order to create an obligation. Once a voter had accepted the candidate’s generosity, it would be bad manners not to repay that generosity when casting the vote. But this kind of naïve transaction did not last long. By the mid 1990s, some voters would take money from every candidate, and then vote how they pleased. Others would only take from a candidate they had already decided to vote for, in order not to create an obligation.

Candidates still had to offer money. Not doing so would risk being branded as “ungenerous” and thus not worth electing. This was particularly true of candidates known to be rich. Vote-buying has thus become a bit like a candidate’s deposit, distributed among the voters rather than paid to the authorities.

By the mid 1990s, vote negotiation had become much more complex than these simple retail transactions. Voters understood that candidates had the potential to offer much greater benefits than a few red notes. They could bring infrastructure spending and development projects with much more impact in the locality. Communities negotiated with candidates to promise scheme, and held them to their promises by the threat of withdrawing their vote at the next poll. Parliament created the “MPs fund” to enable sitting members to fulfill these promises. Lots of local infrastructure got built.

Since then, the system has shifted again. The 1997 constitution began a deliberate attempt to de-link this kind of local pork-barrel from national politics. The funding for local schemes has been substantially transferred from the national budget to local government. MPs have less influence on central budget spending, and the MPs fund has disappeared. Elective provincial councils and municipalities now have big budgets. Many politicians have followed the money from national to local politics.

At the same time, the profile of the electorate has changed. The great 1986-96 boom boosted incomes, and the 1997 bust only temporarily knocked them back. The expansion of secondary education in the 1980s began to work through to the electorate.

Then Thaksin changed the game in national politics. He promised some attractive redistributive schemes, and delivered them. He centralized control over a fifth of the budget under his own executive authority, and toured the country dishing this out. The party and the prime minister became more important patrons than the local MP. Although the 2007 constitution has reversed some of this change, the memory still dominates.

In the last couple of years, there have been studies of election practice in the north, northeast, and south. The decision on casting a vote is now very complex and involves the party, the candidate, and the money. In the south, voters feel a strong emotional pull to vote Democrat. In the north and northeast, Thaksin’s schemes have created a strong pull towards PPP/TRT. Yet the candidate also undergoes scrutiny. Is he a local person, someone close to us? Can he get things done, and does he have the track record to prove it? Is he reasonably honest? Does he have the right kind of friends? Finally, does he prove his generosity with a gift? Only candidates known to have modest wealth are excused this obligation, yet can still be elected on grounds of their social contribution.

At the recent poll, there did not seem to be much money around. After three elections in three years, pockets were empty. Candidates feared disqualification. The issue at stake in the poll was so stark, that a few hundred baht was not likely to matter.

So why the current panic about vote-buying? The upcountry electorate is richer, better educated, and more experienced at elections than ever before. In truth, the problem is not that upcountry voters don’t know how to use their vote, and that the result is distorted by patronage and vote-buying. The problem is that they have learnt to use the vote only too well. Over four national polls, they have chosen very consistently and very rationally.

And, of course, that may be the real problem. Back when many upcountry electors sold their votes, and as a result their weight in national politics was zero, nobody cared so much about vote-buying. But now the electors have got smart, they have to be stopped. The bleating about vote-buying and patronage politics is simply an attempt to undermine electoral democracy because it seems to be working.

( http://www.geocities.com/changnoi2/selloff.htm )

The war of spiritual forces that control Thai politics

18 august 2008


By Chang Noi


Some months ago, Chang Noi was invited to a dinner with a speech by a leading technocrat and former minister of finance. The event was attended by businessmen, senior officials, and politicians. By chance, Chang Noi was seated beside the brother of another leading technocrat and former minister of finance. Throughout the meal and the speech, he talked of various spirit mediums who could offer insight on political events and the future of the realm. He handed over business cards of some of them. He offered to be personal escort to a meeting with one medium of exceptional power.

For many people, the last two years have seen an epic battle over the fate of the nation. On one side are forces associated with the “third hand that can not be seen”. On the other are forces associated with “London.” This is not to say that any such battle has been taking place in reality, but that is how things have appeared in the popular imagination, and not only for the “man in the street” but also for the man in the conservative suit with the Lions Club lapel badge. This tale is not about reality, but about belief, or about how to talk about things that are unmentionable.

The tale starts over two centuries ago at the foundation of Bangkok. There was a sacrificial event at the erection of the city pillar. Such ceremonies draw on old beliefs about the spiritual force vested in the earth. The sacrifice is required to placate these spirits so they offer their protection to the realm. Unhappily, a green snake slid into the hole along with the offerings.

This has been the cause of difficulty for the realm and ruling elites ever since, requiring propitiation of those gods who have the power to combat this sort of misfortune. Two gods were selected for this role. The first is the “flower Brahma.” In Hindu mythology, while Vishnu was lying asleep on a serpent, a lotus flower sprouted from his navel. Brahma was incarnated in this lotus, seated in a position of deep meditation, and went on to recreate the world. In India, the idea of a “flower Brahma” seems unknown. But in the Thai adaptation, the phrase means a meditating Brahma of special power – enough power to recreate the world.

The second god is Vishnu, or Narai in the Thai tradition. During the churning of the sea of milk to create the life force for the world, he stands at the very centre, imperiously directing the whole event with his four arms. As with the “flower Brahma,” this is an image connected to the power of creation.

On 21 March 2006, the statue of Brahma known as the Erawan shrine was smashed by hammer blows. Of course the statue was originally the guardian spirit for a hotel. Such shrines draw on the same beliefs that underlie the city pillar. Probably because the shrine was located at an intersection that became a centre of the city, the statue unofficially took on a role of protecting much more than just a hotel. The attack came at a time of extreme political tension. The controversial 2006 election was two weeks ahead. Mobs were on the streets. According to this interpretation, the incident was not the work of a deranged vandal, but a deliberate attack on one of the key spiritual forces behind the camp of the invisible hand. Thus, the attacker was immediately killed, and the incident was never properly explained in public.

Now fast forward two years to early 2008. At the magnificent sanctuary of Phanom Rung, there is a famous lintel which depicts not only Vishnu reclining on a serpent and contemplating the recreation of the world, but also the moment of Brahma’s incarnation in a lotus sprouting from Vishnu’s navel. Possibly this lintel was what attracted some military men who reportedly visited Phanom Rung and carried out ceremonies to improve the fortunes of the elites and the realm.

But some time after their visit, there was a counter-attack, again at a time of gathering political tension, only a week before the court decision that dissolved Thai Rak Thai. Some people entered the Phanom Rung complex at night, moved and broke an elaborate bull-and-lingam, defaced the mouths of eleven naga snakes, damaged two lions, and broke the hands on two guardian spirits. In this interpretation, this vandalism was an attempt to undo the earlier propitiation of Vishnu and Brahma, and marshal the spiritual forces on the side of “London.” This again explains why the whole event seems to have been hushed up.

The explanation continues like this. The Buriram faction were not early supporters of Thaksin. In fact it was one of the last to fall into line, just before the 2005 election. And yet in 2006, its faction leader became Thaksin’s chief lieutenant. That was not (according to this story) because of his political skills but his spiritual contacts. Buriram is a Khmer-speaking area. In the Thai imagination, the Khmer world is a source of great spiritual power, especially associated with Angkor. Partly that power is associated with Siva, who is so prominent at Angkor. The bull-lingam that featured in the Phanom Rung desecration is a representation of Siva. The snakes are his protectors. By rumor, the faction leader provided a statue of Kali, a powerful representation of Siva’s wife, in one of “London’s” household shrines. In the Thai view, the Khmer are also associated with the darker kinds of spiritual practice. That explains the violence at Phanom Rung.

Finally, how did Samak rise to the premiership. According to this interpretation, Samak is a devotee of the flower Brahma. Shortly before the election he was allegedly seen attending one of the major shrines to this image for an intense ceremony.

If you follow this tale, it explains why politics have been so tense, why “London” has fallen low, why the Buriram faction has risen, and why Samak has become prime minister.

(http://www.geocities.com/changnoi2/gods.htm)

Judgement Day: The Sequel

4 august 2008


By Chang Noi


It was a sequel with a difference. When Thaksin attended the court in August 2001 on the asset concealment case, he got out of his car and walked the last stretch through cheering crowds, waving and pressing the flesh like a presidential candidate. This was a man without fear. The judgement was muddy, opaque, and bizarre. The judges split 8-7 in his favour. One later complained of being “unsuccessfully lobbied” over the case. Another hinted at foul play. The logic and rationale of the verdict left legal experts scratching their heads. This seemed to be a drama about the law’s subjection to power and money.

Scroll forward seven years, almost to the day. In place of the festive mood, the defendants were cloaked in gloom. In place of the muddy verdict, this one was crystal clear. This seemed to be a drama about law triumphant.

The verdict and the sentence are remarkable. Most comment has focused on these. But the event was much more elaborate. The judges seem to have realized this was a historic moment, and milked it for all the drama it could deliver.

That is not surprising. Ever since April 2006 when the king called on the judges (“If you don’t help to make democracy move forward, it will be the country’s downfall”), the judiciary has been in the spotlight as never before. For some, this has been a blessing. They talk of a judicial revolution, and the coming of the rule of law. They predict a new era of Thai politics. Others have been a lot more skeptical. They point out that bringing the judiciary into politics will end up politicizing the judiciary; that the new constitution gives quite extraordinary power to a handful of senior judges; that judgements afflicted by political bias are laying down precedents that will be regretted in the future; that the recent firestorm of legal decisions is undermining parliament and executive; and that in truth what is going on is more like a witch hunt than a judicial revolution. They scoff, “When I see the same standards applied to everyone, then I’ll believe it.”

Both sides are probably rushing to judgement long before it is due. History tells us that it takes some time to establish the traditions, the mind set, the institutions in which a rule of law starts to come into play, so the enthusiasts need to calm down a bit. But history also tells us that the steps towards a rule of law are taken at times of crisis and conflict. Some have forgotten how recently in the US the judiciary was activated to counter ways in which the executive under Nixon was running riot. Some have forgotten how recently in the UK the Poulson case disrupted the widespread corruption in local government contracting. The rule of law does not grow steadily, like grass.

The judges last Thursday seemed very conscious of this debate, and very conscious of the precedent set seven years earlier in a trial on essentially the same issue. The judgement started out with a passage that is more like a manifesto than a preamble to a criminal verdict. It ran like this:

“Before reading the judgement, the bench wishes to point out to the three defendants and those attending to hear the judgement that, as is well-known, at present some segments of the population are divided into camps. This is clearly a political problem, and the conflict that has arisen in thinking and action is violent, with no quarter given. This is a matter that people involved must cooperate to overcome in the future. The role of the courts of law is to be neutral. They have a duty to scrutinize cases under democracy. Let everyone rest assured that the courts scrutinize cases according to their authority and according to the law. They furnish justice to all parties according to the constitution without bias, and without susceptibility to current sentiment.”

Then, instead of moving directly to the verdict and sentence, the judges picked their way through the evidence and through the defence arguments almost line by line, detailing the chicanery, exposing the lies, and pulling apart the cover-up. As a performance it was relentless.

After the verdict and the sentence, it was not over. The judges had another message to deliver. At the tail-end of the judgement, they appended a homily about money, power, and social responsibility:

“All three defendants are people of high social and economic status. In particular, at the time the crime was committed of giving false information in order to evade the payment of tax, the second defendant was the wife of someone who held office at the level of the country’s executive. All three defendants, besides having a general duty to conduct themselves as good and proper citizens, should also behave as good examples befitting their social and economic status. Yet instead they conspired to evade tax, an action which is a violation of the law, and an injustice to society and the tax system, even though the amount of tax that the first defendant had to pay was insignificant compared to the wealth of the second defendant and family at the time. If the first defendant had paid tax according to the law like any citizen it would not have affected the status of the second defendant in any way. Thus the crime of all three is serious.”

The preamble of the judgement made the case for law as something fair, independent, and free of political bias.

The detailed core of the judgement made the case for law as a rational, forensic instrument capable of separating truth from falsehood.

The final homily made the case for law as an instrument of social justice in the face of the inequalities of wealth and power.

This was not just a judgement in Pojaman’s tax case, but a manifesto on behalf of the law.


( http://www.geocities.com/changnoi2/verdict.htm )

When elephants fight, the law books get trampled underfoot

23 june 2008

By Chang Noi

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.

( http://www.geocities.com/changnoi2/trampled.htm)

The mysteries of the law

7 july 2008

By Chang Noi

The role of money in Thailand’s judicial system is a subject that has been little studied. One exception was a large national survey of corruption, conducted about a decade ago, which had a short section about court cases. This survey found that in around one third of cases, money changed hands. The pattern of who paid what to whom was very varied. At one extreme, there were agents or fixers who were paid a lump sum which they then distributed around to various people involved in the case to get the desired result. The respondents to the survey who admitted making these payments reported that they were generally happy with the result. In short, money seemed to work.

One other aspect of this survey was interesting. The corporate bodies of the judicial service and legal profession applied some pressure to ensure the results were not splashed in the public media. That’s not a big surprise. The judicial system relies for its legitimacy on a belief that the system delivers results which are just. The foundations of the judicial system in Thailand are not so strong, so those involved need to protect their image.

This judicial process has now been dragged into the political spotlight. In the last few days, all but one of the main political stories carried by the press have been partly about a court proceedings. On the day of writing, the main political page in two English and one Thai dailies mention a total of fifteen different court suits. This would not have been the case a year ago. It probably is not the case in any other country of the world.

This glare of political floodlighting is putting the judicial process under considerable strain. It’s difficult to operate when it’s not clear whether your task is to deliver justice or solve a political crisis. Any high-profile case now has three stages: a preamble of prediction by political journalists; the hearing and judgement itself; and a long post-mortem debate by warring teams of legal academics. Keen reporters no longer loiter around the houses of parliamentary faction heads, but huddle on the steps of the court houses.

The media glare brings matters to light. But the political world has a murkiness that can defy any amount of wattage. Nowhere is this better illustrated than in The Case of the Little Sweetener, the two million baht bribe encased in a confectionery box bound with duct tape, apparently delivered by Thaksin’s legal team to officers of the court trying the Ratchada land deal case.

You might think that a lawyer caught red-handed delivering money to a court trying a major case against the lawyer’s client ought to be a pretty straightforward matter to interpret. Nothing could be farther from the truth. From the start, this incident has been enveloped in mystery and murk.

To begin with, what could the money be for? In the defamation suits which have become part of the daily process of political competition, the starting price is half a billion baht. For the plaintiffs in the Ratchada suit, the value of the result is quite simply so large it is beyond computation. By comparison, two million is mere confetti. Was this a partial payment of some kind—either part of a series, or part of a wider distribution? It has been suggested that this was payment for some minor information concerning the case. When “gifts” are distributed to offices on a regular basis, often they are placed in a plain envelope or some similarly innocuous container.

Then there was the mystery and murk about what really happened and who was involved. In the first reports of the incidents, newspapers did not dare mention names. The culprits were only “the legal team of a certain ex-politician.” Only when the Supreme Court applied its procedure for contempt were the names of the lawyers and their client revealed. Even then, only one of the lawyers was paraded in full public view. The other one with a nice surname was shielded from the public gaze, and whisked into jail without the press apparently getting a single photo.

Next there was the mystery and murk about the likely consequences of this incident. The first lawyer initially seemed quite unconcerned about being caught in such a flagrant act. He sat through the contempt proceedings in apparently supreme confidence that he would escape retribution. The judgement, sending him to jail for six months, was a massive shock from which he took several days to recover. Even then, the second lawyer wriggled a bit, as if he still might get away. And a senior policeman seemed intent on squashing any assumption that there would be a strong case against the lawyers’ client. Why should he have done that? These mysteries hints at powerful forces working in the background.

The political career of Thaksin Shinawatra has many parallels with that of Alberto Fujimori who ruled Peru from 1990 to 2000. Both were outsiders to an old political establishment. Both became hugely popular populists. Both had utter contempt for parliament, law, and a free press. Both fell spectacularly. But there is one big difference between the two. Fujimori’s sidekick kept accounts of all his political pay-offs. After he fell these became available for analysis.

Fujimori paid off three groups: politicians, the media, and the judiciary. The politicians were the cheapest (per head) and easiest. The media took the largest amount of money and management time because Fujimori understood his fate was in the hands of public opinion. The judiciary fell in the middle. Unlike the parliamentarians and media-owners, most were not paid on a regular basis. Often judges could be intimidated in other ways, such as boosting or damaging their career prospects and public reputation. The money, estimated as averaging $250,000 per month, was targeted in large amounts at a few influential judges, and at a few important court cases.

( geocities.com/changnoi2/mysteries.htm )

PAD: bulldog on a leash or another nail in democracy’s coffin?

21 july 2008

By Chang Noi

Since it was formed in February 2006, and especially since it was revived in May this year, the People’s Alliance for Democracy, has become a very distinctive force in the political landscape. Formally, PAD is simply an alliance of five orators. But as a political phenomenon, PAD is also what they are saying, how they are saying it, what visual messages they convey, and who is supporting them.

The movement’s main stated aim is to overthrow the current government. Normally any movement which professed this aim would be labeled dangerous, even revolutionary, and be strongly handled by the authorities. Strangely that is not happening. Probably that is because we know its true aim is to obstruct Thaksin’s overt return to politics.

The movement’s longer-term aim is to undermine the central principles of electoral democracy, namely the sovereignty of the people, and the selection of a parliament by the system of one-man, one-vote. The PAD leaders claim that the electorate cannot be trusted with the franchise because the mass of rural people are uneducated and corrupt. They want the elected portion of the lower house reduced to a minority (perhaps 30 per cent), and the remainder filled partly by “retired officials and important people” and partly by ordinary people and workers, selected by appointment. Since the logic of the PAD’s proposal is to disenfranchise the rural poor, this new system is likely to favour the rich, the urban, and the higher educated.

In addition, PAD wants the military to have a permanent role of political oversight. The military would be removed from political control (by making the defence ministry independent of the cabinet), and granted a right to intervene in politics to check corruption and to protect the monarchy and national sovereignty.

The PAD seems against the freedom of expression, and in favour of the use of abuse and intimidation to limit the freedom of expression. This conclusion is based on the way that PAD orators treat academics, actors or other public figures that have disagreed with PAD views. This tactic seems to have been quite successful. Some critics have apologized. The press has been generally rather uncritical of the PAD’s views and activities.

The PAD makes use of military and martial symbolism. Some of the leaders like to wear brown shirts and black shirts that resemble military and para-military uniforms. The headbands worn by leaders and followers recall the outfits of traditional warriors, samurai, and jungle fighters. The oversized neckscarf comes from the scouts, village scouts, and jungle fighters. It is not Chamlong’s rural-ascetic look but this barracks-chic that distinguishes the movement. Among the supporters, yellow flags, headbands, T-shirts, and caps combine to give the impression of commonality and conformity which is the role of uniforms.

PAD promotes a visceral nationalism reminiscent of the early Phibun era. The nation is a body that is being physically ripped by its enemies (internal and external), causing pain to the citizens, who must rise up in the nation’s defence.

The PAD’s agitational practice suggests a high degree of organization, strong financing, access to technology, and skill with sophisticated techniques. The equipment for staging and broadcasting the PAD’s message requires high capital cost and running expenses. The crowds are well organized and provisioned. The programming shows strategic planning to sustain support and interest with relatively little novelty. The PAD seems skilled in the techniques and rituals of litigation. In short, this is not a few people gathered at a street corner with a soap box.

Analyzing the PAD’s audience on the streets and in front of television screens is difficult. There are only stray interviews, plus pictures. Perhaps the single word that emerges from this impressionistic data is “respectable.” The crowds are generally smartly dressed. The age-profile is quite high, though there are also many families in attendance (and the TV audience may be significantly younger). Head-counting from press photos shows a slight preponderance of women over men. From the few on-site interviews available, the crowds include retirees, public servants, small business people, and senior executives from modern firms. There seem to be relatively few manual workers.

The PAD is clearly well-connected to other institutions. One of its leaders is a Democrat MP. Other Democrats have spoken from its stages. So too have academics from some of Bangkok’s major universities. A serving general has taken the PAD stage in his full uniform. Other military figures, including General Saprang Kalyanamitr, have been seen back-stage and are open in their support.

The PAD seems to be protected, perhaps by friends in important places, but also by virtue of its widespread urban support. No other Bangkok protest has suffered so little harassment. When the prime minister angrily threatened to clear PAD off the streets, the security forces refused to cooperate and the prime minister had to back down. When PAD set up a permanent blockade of roads, the police stood aside and public-opinion surveys were surprisingly lenient over the disruption to traffic. When the protest moved to Government House, the police resistance looked like a token showing designed to fail. This apparent immunity gives weight to PAD’s message.

The PAD is flirting with the old agent provocateur’s technique of placing its own crudely armed gangs in places where they will be attacked by enemies. This creates violent incidents, apparently initiated by their opponents, though in truth a result of the inherent violence of the PAD itself.

In short, PAD is an anti-democratic movement, supported by high investment and shadowy protection, that exploits the fears of the privileged and a deliberately anti-rational nationalism, and flirts with militarism and violence.

Is PAD a bulldog, let out on a leash for a specific purpose, that will be chained up when the threat from thieves has passed? Or is it another step in the destruction of democracy begun by Thaksin, continued by the coup-makers, and now plunging ahead on the momentum?

( geocities.com/changnoi2/padmeaning.htm )