Updated: Lost in law

PPT admits to being confused on a Bangkok Post story citing Kanit na Nakhon as chairman of the Law Reform Commission (LRC). Readers will recall that Kanit was formerly chair of the Democrat Party-appointed Truth for Reconciliation Commission.

Kanit has come out to assert that “Parliament’s deliberation of the charter amendments on the make-up of the Senate violates the constitution…”. Apparently he sent a memo on this “warning” parliamentarians that: “… deliberation of the charter amendments relating to the make-up of the Senate contravenes the constitution.”

Tie us up and whack us with wet newspapers, but we just don’t get it. If the constitution can’t be amended according to the constitution’s own provisions, then is it some kind of divine document rather than just being an invention of a bunch of military junta and elite cronies.

Can any reader see anything in Kanit’s curious claim that has even a smidgen of legality to it?

Update: Here’s another one that confused us for a second. At the Bangkok Post, Deputy Democrat Party leader Korn Chatikavanij is said to have “blasted the government for prioritising charter amendment ahead of political reform.” Um, changing the constitution to rid it of military junta-imposed unelected senators who represent the royalist elite is not political reform? The way the elite protect the constitution that they all said could be changed “later” when it was foisted on Thailand is revealing.

Complaints, corruption, coups

PPT is behind on a pile of posts we’d like to get out, so this is a summary post of issues worth noting:

At the Bangkok Post: The issuance of a government decree empowering the Ministry of Finance to acquire up to 2 trillion baht in loans for infrastructure development is claimed to be a constitutional violation. This is according to Law Reform Commission chairman Kanit Na Nakhon. Anything like this speaks to a constitutional challenge, the Constitutional Court and a judicial coup, so worth watching.

The Nation comments on the royalist corruption mantra (readers will see this word often over the next few posts).

The paper’s report refers to the National Anti-Corruption Commission (NACC) selecting provincial members. The story then morphs into a political attack that mirrors yellow shirt complaints. And why not, for it comes from anti-Thaksin Shinawatra campaigner and NACC member Klanarong Chanthik, who says: “Corruption is badly undermining the country’s economic, political and social systems. Irregularities in Thailand tend to get more serious and complex…”. Then diehard monarchist and anti-Thaksin organizer  Vasit Dejkunchorn is given a platform, saying that “greedy politicians” are “kleptocrats” and “warned that, if nothing is done to rein them in, they might eventually turn Thailand into a kleptocracy – a country ruled by thieves.”

To put some of this together, readers might want to also peruse an op-ed by David Streckfuss at the Bangkok Post, where he compares Thailand’s 2006 coup and the recent coup in Egypt. This caught our collective eye:

In Thailand, Thaksin increased his own power in the name of his large majority wins in the House of Representatives, and similarly, in part to exert more civilian control over the military. The courts annulled one election, removed two prime ministers, and banned members of Thaksin’s political party. The coup government enacted its own constitution and efforts to amend it have run into judicial blocks and threats of military coups.

The occurrence of coups is a sign of unresolved and conflicting visions of the distribution of political power in a society as well as, of course, of a powerful and unaccountable military. Democracy _ participation in elections and acting in accordance to a constitution that defines the rules of the game _ creates the space and framework necessary to work these things out.

Updated: Defending the TRC

The Bangkok Post decides that the Truth for Reconciliation report on the Battle for Bangkok needs additional boosting. It shouts that the:

condemnations [of the report] bordered on the hysterical, with certain Pheu Thai Party MPs demanding another commission be set up under their rules and terms of reference.

Hysterical? PPT actually felt that the cheers for the report verged not on the hysterical, unless one was referring to them as hysterically silly to the point of bizarre. As one example, consider the account of it by Southeast Asia Program at the Center for Strategic and International Studies in Washington, D.C.

Written within hours of the final report being released and with no evidence of having read any of it, the CSIS claims that it “seems to give a balanced treatment to both sides involved in the political violence two years ago…”. As well as being “balanced,” CSIS reckons it is “objective, comprehensive, and critical … groundbreaking [and displays] objectivity…”.

Hysterical support perhaps for a report that is assumed to be all kinds of appropriate things with not a shred of possible evidence.

The Post’s account claims that the “more critical recommendations touched upon the role of the military and the monarchy.”

The Post seems to laud the TRC for a recommendation that PPT has seen for several decades; that “the military must refrain from getting involved in politics and carrying out coups.” Hardly “groundbreaking.” And PPT has already commented on the deeply conservative suggestions on the monarchy.

The Post trumpets the TRC call for “more decentralisation as part of the key solutions to the current political problems as it sees centralisation as part of the root cause of inequality.” Royalist Prawase Wasi and every second public intellectual has been demanding decentralization. The idea that inequality is rooted in centralization is obscurantist nonsense with no basis in data or analysis.

What seems to bothering the Post and Kanit na Nakhon is that the TRC’s elite conservatism is vigorously criticized.

Update: Readers may find Asian Correspondent’s account of the TRC report and reaction to it of use.

Thaksin in Singapore

A report at Bloomberg is full of ironies regarding politics and Thaksin Shinawatra. Yingluck Shinawatra in New York for the U.N. General Assembly – that’s where Thaksin was in 2006, when the coup was launched – Thaksin himself has been in Singapore, reportedly as a guest of Temasek. It was the sale of Shin Corp to Temasek that unleashed a wave of Bangkok-based anti-Thaksinism that prepared the ground for the coup.

It is a long report which PPT won’t summarize here. Essentially, Thaksin is clear that neither he nor his sister’s government are going to be doing too much to provoke political opponents: “It’s like the government is living in a house full of land mines. So you have to be very cautious of what you are doing.”

Part of the reason for that is self-centered but part is Thaksin the businessman speaking, arguing that political stability helps investment (and the observation that the Thai stock exchange has the world’s second-highest growth this year).

The issue of constitutional reform remains on the agenda, however, as does the investigation of deaths in April and May 2010. Thaksin says: “It’s too much the way they crack down on the people,” Thaksin said, adding that the International Criminal Court is considering whether to accept a petition on the case filed by the Red Shirts. “Definitely they have to be held accountable.”

On the report by the Truth for Reconciliation Commission report and Kanit na Nakhon’s call for Thaksin to leave politics Thaksin says: “That’s the view of a very few people, especially the chairman…”. He adds that “Kanit was ‘still angry with me’ about a dispute over who to include in his Thai Rak Thai political party, the party that brought him to power in 2001. Kanit declined to comment directly on Thaksin’s remarks when reached by phone late yesterday.”

Muddling the TRC report

PPT saw three international media stories today that managed to misrepresent the Truth for Reconciliation Commission. One in the Sydney Morning Herald, another at Radio Australia, and the third at Pakistan’s Daily Times. The latter is listed as an AFP report, and all three, while having different names as authors/sources say almost the same thing: that the TRC called for Thaksin Shinawatra to stay out of politics.

As far as PPT is aware, this is inaccurate, although readers may want to correct us. As we understand it, the comment that Thaksin stay out of politics was made by TRC chairman Kanit na Nakhon in a personal comment at the end of the launch of the TRC report. The Pakistan report claims that the statement was in “an English-language statement released alongside the report.” PPT searched the English-language summary of the report released on that day, but there is no statement on Thaksin.

At the time, PPT commented on Kanit’s statement:

This is a suggestion that has to be read for what it doesn’t say. Kanit’s call is for Thaksin, Thailand’s most popular elected leader ever to step aside. Pro-Thaksin parties have won every election since 2000, usually by a substantial margin. Yet Kanit wants him to stay out of politics.  Kanit seems to think that Thaksin,  because the elite hates him, needs to sacrifice himself. Where’s the impartiality…? Should the king, queen, Prem Tinsulanonda and the military also stand aside from politics (not that they have been elected)?

Hence, when the SMH report states that “Thaksin, a deeply divisive figure in Thai politics…”, we can only wonder why this isn’t a point regularly made about Prem, the king and queen, General Prayuth Chan-ocha, Chamlong Srimuang, Abhisit Vejjajiva and Suthep Thaugsuban. The idea that only Thaksin is “divisive” is royalist nonsense.

More on TRC matters

Readers have been active in sending PPT material related to the Truth for Reconciliation Commission. Two of the most interesting are mentioned here.

First, a reader points out to us that we missed a link in the TRC report. In an earlier post, we commented on the Wall Street Journal (also here) op-ed on the Truth for Reconciliation Commission report by Asia regional director of the Centre for Humanitarian Dialogue Michael Vatikiotis. We stated:

In the first place, is his moniker a full disclosure of his relationship to the TRC? Vatikiotis has been working with several state and other bodies in Thailand on various “humanitarian dialogue” issues including the south and rumors of involvement in palace-Thaksin Shinawatra negotiations. Suddenly, he has popped up at the release of the TRC report and now as a booster for the report…. When Vatikiotis notes that “the commission drew on extensive international advice and support,” it would be useful to know if he and the HD Centre had a role with the TRC.

In fact, pages 18-22 of TRC’s report lists all of the international experts and agencies who joined hands with the TRC and supported its work. There are three mentions of the Centre for Humanitarian Dialogue. The first is a meeting with “a representative of the Centre … to discuss and support TRC operations.” The second refers to an offer of support and assistance to the TRC. The third mention is of a meeting between TRC Chairman Kanit na Nakhon and Francesc Vendrell, said to have supported reconciliation efforts in several countries, Michael Vatikiotis of the Centre for Humanitarian Dialogue, and two other Centre staff “in the name of the Friends of Thailand Group” (ในนามกลุ่มเพื่อนประเทศไทย) to exchange ideas and views about reconciliation and the positioning of the TRC in terms of the perspective of the international community.

We have no idea who the “Friends of Thailand” are. Do readers know?

Interestingly, the support of the HD Centre to the TRC was the most consistently recognized in the report. It seems that Vatikiotis was allocated a role in advocating for the TRC to the international community. Again, though, as we pointed out in the earlier post, HD Centre activities in Thailand are confidential/secret.

Second, a reader reminds PPT of something we had certainly forgotten. This is of Kanit’s earlier incarnation as Attorney-General in the 1990s. Readers may recall that the Chuan Leekpai Democrat Party-led government (1992–1995) fell when members of the Cabinet were implicated in a Sor Phor Kor 4-01 land project documents scandal in Phuket. The aftermath of that case was that the Attorney-General’s office, under Kanit, dropped the cases against those implicated, including wealthy people connected to the Democrat Party. Some of the reaction to that case are found in several reports from the time, here, here, here and here. Recalling the intricate linkages and debts in Thai politics always causes some surprise.

Truth?

As people begin to wade through the Truth for Reconciliation Commission report on the April and May 2010 violence, it seems that the initial public relations exercise of praising the report for “truth, balance, impartiality and fairness” is beginning to drain away in the face of more thoughtful and less propagandist accounts. The huge effort expended on tracing “men in black” – in some accounts there were apparently hundreds of them – seems to amount to almost nothing in the TRC’s report. Bangkok Pundit concludes: “The thought of reading the report given its length and that it really doesn’t tell us much more than what we knew before.”

Pravit Rojanaphruk, who seemed to have a leaked report (and a longer one!), is now more critical in his assessment than in his earlier account. At The Nation he refers to the TRC report as “a missed opportunity to establish truth and reconciliation.” He points out:

It is no secret that the TRCT’s birth was controversial. Then-prime minister Abhisit had hand-picked chairman Kanit na Nakorn and one of the key commissioners, human-rights lawyer Somchai Hom-laor, had shown signs of being partial towards the yellow shirts. In 2006, he had written to old friends asking them not to be too harsh with the People’s Alliance for Democracy (PAD) in 2006.

Pravit adds that: “its credibility was further undermined when it appointed Maetha Maskaow, a former close aide and protege of PAD secretary Suriyasai Katasila, as a member of its investigation subcommittee.”

Hence, all the concentration on “men in black,” which begins to look like a yellow shirt account, is said to have been “presented in far too broad a brushstroke, leading to more questions.” Indeed, for PPT, it is just an account of previous accounts with little added. All it seems to do is look for reasons why the military killed so many. The fact is, the military was shooting before alleged actions by “men in black.”

Pravit points out the spurious claim by the TRC “of knowing the true ‘intentions’ of the ‘men in black’ was never substantiated…”. He concludes:

Nevertheless, without basing its “truth” on clear methodology and evidence that can be widely accepted and trusted on both sides of the political divide, reconciliation is very unlikely and impunity can almost be guaranteed.

Further updated: Reporting the TRCT report

The New York Times has a different angle on the reporting of the Truth for Reconciliation Commission of Thailand’s report released today than seen in several Thai newspapers, where the story has been about so-called men in black.

In this report they are mentioned, but the focus shifts to the use of a sniper to assassinate Maj-Gen Khattiya Sawasdipol, shot while being interviewed by Thomas Fuller of the NYT. There is no surprise that the report says he “was assassinated by a sniper most likely located in a building controlled by the authorities.”

The report cites Sunai Phasuk of Human Rights Watch, who praises the report “as balanced” with “neutral evidence and forensic science.” Sunai adds: “This is the first report in modern Thai political history that investigates violence from all sides…”. Sunai is also quoted in another report, at The Nation (see link below), as saying this was an “impartial inquiry.”

We might note that HRW produced its own report, which Sunai appears to be ditching. PPT is keen to see the forensic evidence because that was entirely missing from the HRW report. At the same time, claims about impartiality should be tempered by the knowledge that the TRCT was established by the Abhisit Vejjajiva administration. Few of its members can be considered impartial on the political conflicts of recent years. That comment doesn’t mean the report can be rejected out of hand. But nor should Sunai be simply lauding the report; it has to be critically assessed.

The NYT report has another interesting comment, observing that “the head of the commission, Kanit Nanakorn, called on Thaksin Shinawatra … to ‘sacrifice’ and withdraw from politics.”

This is a suggestion that has to be read for what it doesn’t say. Kanit’s call is for Thaksin, Thailand’s most popular elected leader ever to step aside. Pro-Thaksin parties have won every election since 2000, usually by a substantial margin. Yet Kanit wants him to stay out of politics.  Kanit seems to think that Thaksin,  because the elite hates him, needs to sacrifice himself. Where’s the impartiality that Sunai lauds? Should the king, queen, Prem Tinsulanonda and the military also stand aside from politics (not that they have been elected)?

The commission’s report gets very partial when it demands that: “All parties must express a clear intent to venerate the monarchy as being above all political conflicts…”. The call seems to be that the monarchy is critical for Thailand. It isn’t, but it is critical for the royalist state and its rule.

At The Nation, the argument seems to be that the TRCT report has to be venerated
for its “impartiality,”  warning that “people should not use the findings to create more rifts.”

However, some prominent red shirts, such as academic Suda Rangkupan, said the report contained more falsehoods than truths. “Who are the killers? No conclusion has been reached about the men in green,” she said, referring to the Army. “There is more false information than fact. It will be the beginning of another round of conflicts.”

As noted above, the TRCT report should be examined and critically considered, not lauded and praised just because the Abhisit Vejjajiva government’s carefully selected commission has finally reported.

Update 1: A reader tells us that the paper edition of the International Herald Tribune in Thailand today stops its report from the NYT at the phrase “vacuum of moral authority” thus leaving out reference to the comments about venerating the monarchy noted above and the need to review the lese majeste law (something PPT should have added above as well).

Update 2: The TRCT report, in a 276-page PDF, is available for download, in Thai.

“A lack of moral courage to do what is right”

Academic Somsak Jeamteerasakul:

In the case of Ah Kong, all sides in Thai society have shown a lack of moral courage to do what is right.  They have been concerned with their own status, positions and politics, and have done nothing. Ultimately, an ordinary old man has fallen victim, having to die away from his family….

This is an important point made by Somsak and reported in a post at Prachatai that has photos and videos of Ampol Tangnopakul’s funeral on Sunday. Ampol succumbed to cancer in prison while those without a shred of moral courage had him locked up on lese majeste charges.

Somsak adds:

The court must have been aware that the repeated denial of bail and the guilty verdict were not right.  Academics and members of the elite, like Anan Panyarachun, Bowornsak Uwanno and Khanit Na Nakhon, who have come out to say that the lèse majesté law is problematic, have been silent in this case.  Why have they not come out to say that the verdict was wrong? Where is their moral courage, he asked?

Our answer is that these people and those all the way up to the very top of the royalist elite are not just morally bankrupt but frightened. Frightened that they might do or say something that their liberal and conservative friends might object or call them out, but are even more frightened that the structures and institutions that make them privileged and keep them privileged may come tumbling down.

At last, HRW on lese majeste and bail

Yesterday, in commenting yet again on the repeated denial of bail for those accused and convicted of lese majeste, PPT observed:

the US Embassy, Amnesty International and Human Rights Watch say nothing. They have a sham interest in human rights in Thailand and stand on the side of those who abuse human rights. They should be ashamed as they are complicit in these ludicrous events.

For months, indeed years, we have been making the point that the denial of bail is a form of torture and a means to further punish lese majeste victims. We have also stated that the courts engage in behavior that is arguably unconstitutional.

We are now able to say that Human Rights Watch has finally said something useful on the non-use of bail as punishment. Here’s HRW’s statement, apparently released late on Friday:

Thai courts are refusing bail for people charged with the crime of lese majeste for apparently political reasons, Human Rights Watch said today. Thai law criminalizes the expression of peaceful opinions deemed offensive to the institution of the monarchy.

How come Sondhi gets bail?

In all 12 cases of lese majeste that the public prosecutor has filed against supporters of the United Front for Democracy against Dictatorship, known as the Red Shirts, since 2009, bail has been denied, Human Rights Watch said. By contrast, the leader of the pro-monarchy People’s Alliance for Democracy (PAD), Sondhi Limthongkul, was charged with lese majeste on July 5, 2010, and granted bail the same day.

“Bail appears to be systematically denied to members of the Red Shirts while they await trial for lese majeste,” said Brad Adams, Asia director at Human Rights Watch. “Denial of bail seems to be for punishment rather than for justified reasons.”

A verdict is expected on February 28, 2012, in the case of Surachai Danwattananusorn, a prominent political activist and leader of the Red Siam, a faction in the Red Shirt movement that has often expressed anti-monarchy opinions. He was arrested and charged with lese majeste in February 2011, and his bail application was denied five times. He said his health problems, including a heart condition, hypertension, and diabetes, and the repeated rejections of his bail applications are the main reasons he has decided to seek a quick end of his trial by pleading guilty.

Joe Gordon, an American citizen known to be a supporter of the Red Shirts, pleaded guilty to lese majeste charges and was sentenced in December 2011 to five years in prison. He told Human Rights Watch that he decided to plead guilty, hoping to have his penalty lessened, after being denied bail eight times since his arrest in May 2011. The sentence was later reduced by half and he is now preparing to ask for a royal pardon.

PPT needs to interject here: we are unsure why HRW makes the point that Joe is “known to be a supporter of the Red Shirts.” We have no evidence that Joe was a red shirt supporter when arrested. That said, the claim made of Joe could equally apply to millions throughout the country. HRW’s statement is questionable and politicized. HRW are also neglectful of the fact that Joe cannot apply for a pardon as his case is being appealed by the prosecutor. HRW appears to lack adequate information regarding lese majeste victims.

Somyot Preuksakasemsuk, a well-known labor activist and editor, was arrested on lese majeste charges on April 30, 2011 in connection with articles published in the now banned Voice of Taksin magazine, which supports the Red Shirts. He has been denied bail seven times since his arrest, most recently on February 20.

Human Rights Watch expressed concern that Thai authorities are using Somyot’s pre-trial detention to mistreat him. Somyot told Human Rights Watch that he had been transferred to attend witness hearings in Sa Kaeo, Petchabun, Nakorn Sawan, and Songkhla provinces, during which he had to stand up throughout the journeys in an overcrowded truck, with his ankles shackled and without access to toilet facilities, leading to the aggravation of his medical conditions, which include hypertension and gout.

Holding the witness hearings in the provinces may have been unnecessary because, as Human Rights Watch learned, a number of prosecution witnesses in Somyot’s case actually live and work in Bangkok despite having registered residences in the provinces. On September 12, the criminal court in Bangkok rejected Somyot’s request to hold hearings in Bangkok. The four provincial courts rejected a similar request. Holding numerous, and perhaps unnecessary, pre-trial hearings outside Bangkok – at least 10 more such hearings are scheduled before May – will mean that Somyot will have been in pre-trial detention for at least a year before his case goes to trial.

HRW might have added that his last appearance in Songkhla was cancelled when the single prosecution witness failed to show up, meaning the 24 hours of traveling was wholly unnecessary.

On February 11, Panitan Preuksakasemsuk, Somyot’s son, started a hunger strike in front of the criminal court to demand his father’s release on bail while he stands trial. The campaign has since been backed by the families of other lese majeste prisoners.

The International Covenant on Civil and Political Rights, which Thailand has ratified, states that, “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.” Those denied bail need to be tried as expeditiously as possible.

HRW could go further, as we stated several months ago. PPT considers the use of extended incarceration for lese majeste victims in order to force guilty pleas is a form of torture, as defined by the U.N.:

… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

That’s our quote from the U.N., but but back to HRW:

“The glaring injustices of the lese majeste cases are being made even worse by the denial of bail and long periods of pre-trial detention,” Adams said.

In response to recommendations by the Truth for Reconciliation Commission of Thailand, the Justice Ministry’s Rights and Liberties Protection Department has begun using its budget from the “Justice Fund” to guarantee bail applications of those being held on lese majeste charges, as well as supporters of the United Front for Democracy against Dictatorship facing various charges in connection with political protests in 2010. The commission’s chairperson, Kanit Na Nakhon, has also publicly called for judges to treat lese majeste offenders more leniently. In February, though, the courts have rejected the first three bail requests under this effort.

The House of Representatives’ Standing Committee on Law, Justice, and Human Rights began a hearing on February 22 to investigate the refusal of bail in lese majeste cases in which the defendants are believed to have connection with the Red Shirt movement.

“Freedom of expression is seriously under threat in Thailand because of harsh treatment and severe penalties being meted out for peaceful expression,” Adams said.

Since the September 2006 coup, Thai authorities have taken increasingly repressive actions against those perceived to have made criticisms of the institution of monarchy. In response to mass protests led by the Red Shirts in 2009 and 2010, the government of then-Prime Minister Abhisit Vejjajiva frequently used article 112 of the Penal Code and article 14 of the Computer-Related Crimes Act to intimidate, arrest, and prosecute activists, journalists, and academics, both Thai and foreign. Despite its promises to restore respect for human rights in Thailand, the new government of Prime Minister Yingluck Shinawatra, which took office in August 2011, has shown little interest in ending lese majeste crackdowns. On September 1, 2011, a computer programmer, Surapak Phuchaisaeng, was arrested in Bangkok for allegedly posting pictures, audio clips, and messages deemed insulting to the royal family on the social networking site Facebook.

While PPT has been critical of the Yingluck government on lese majeste, we think HRW is being misleading on this. Surapak’s case does have the dubious distinction of being the first lese majeste arrest under the Yingluck Shinawatra government. At the same time, the case began under the Abhisit  government.

In this sense, as far as we are able to tell, while the current government was strong on lese majeste rhetoric, the level of cases being investigated and charged appears to have declined. That could easily change, but at the moment, HRW’s claim about the new government does not appear to match the available facts.

HRW continues:

In his 2005 birthday speech, Thailand’s revered King Bhumibol Adulyadej himself stated that he was not above criticism. “Actually, I must also be criticized. I am not afraid if the criticism concerns what I do wrong, because then I know. Because if you say the King cannot be criticized, it means that the King is not human,” he said. “If the King can do no wrong, it is akin to looking down upon him because the King is not being treated as a human being. But the King can do wrong.”

This speech is usually cited by “liberal royalists” in recognizing that the post-2006 coup use of lese majeste has been highly politicized. Frankly, we think that these royalists and HRW have misunderstood the point of that speech, which was essentially an attack on then Prime Minister Thaksin Shinawatra.