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Renowned historian Thongchai Winichakul has pointed out that the Thai justice system operates under a “royalist rule of law”, which establishes a state of exception allowing the infringement of the people’s rights and freedoms under the pretext of national security.

In the “Murdered Justice” exhibition marking the 10th anniversary of Thai Lawyers for Human Rights (TLHR), Thongchai Winichakul, a prominent Thai historian, gave the closing speech on how the prerogative state and royalist rule of law work in Thailand, highlighting the “state of exception” in Thailand’s justice system, where the authorities exercise power to target the people deemed as threats to national security.

Thongchai observed that the Move Forward Party’s legislative policies focus only on unfair enforcement and classify the issue as a part of dictatorship while failing to address systematic issues within the justice process.

He emphasized that democracy cannot thrive if Thai society believes that injustice stems from the misuse of law and individual problems, rather than the law or the legal system itself. People generally attribute the issue to two main causes: personnel who are either incompetent or unfair due to money, power, or fear; and the political sector that manipulates enforcement.

“Actually, the problems within the justice system are systemic, rooted in ideas and jurisprudence that are distorted from the very beginning. The enforcement [of the law] and behaviour of individuals are the distorted outcomes resulting from a system that has been flawed and wrong from the start,” Thongchai argued

Political influence over several legal cases is just the tip of the iceberg, while the deeper issue within the abnormal justice system remains hidden from public scrutiny.

Thongchai suggested that the flawed justice system dates to a major legal system reform during the reign of King Rama V, noting that these are deep-rooted issues which cannot be addressed merely by fixing minor or superficial elements; instead, they require a complete overhaul.

Thongchai said that when the Constitutional Court ruled to dissolve the Future Forward Party and was criticized for violating the principles of jurisprudence, the situation didn’t surprise him, nor did it surprise others, as such judicial activism has occurred since the 2006 coup.

The historian believes that there were no direct “orders” in every case to influence the court ruling, but rather that the system as a whole is problematic, and that facilitates indirect influence. He said that court rulings in the past two decades have not upheld a normative legal system but rather reflected Thai jurisprudence.

Thongchai explained that the “royalist rule of law” and “prerogative state” are the foundation of Thailand’s legal system. The royalist rule of law is a form of the prerogative state and there have been active efforts to embed the royalist rule of law within the Thai legal system, particularly through the Constitutional Court’s rulings.

When King Rama V reformed the legal system in an attempt to modernise the country, he combined traditional jurisprudence, where the King was the source of the law and justice, with a modern legal system. However, the reform excluded the cornerstone of the modern legal state: protecting people’s rights and properties from the state’s threats.

“The reform has a footnote in that draft clearly saying that it does not include civil rights because in Thai society this idea had never existed,” said Thongchai.

He argued that there is a misunderstanding that organising legal provisions and judicial processes makes the country a legal state. In reality, the reformed legal system did not align with international standards from the beginning. Instead, it established the two main foundations: the prerogative state, where national security is prioritised above everything, and the royalist rule of law, where the law is are closely tied to the monarchy.

Thongchai stated that these two authoritarian concepts are the legacies of the absolutist regime and have paralleled each other since then. However, the 1932 Siamese revolution created a divide between the military and the monarchy. At the time, the concept of a prerogative state took over the legal system.

The two concepts gradually converged again under “Democracy with the King as the Head of the State (DKHS)” when the palace exerted hegemonic control and royal forces took control of the army. This combination became explicit when judicial activism was exercised in 2006.

The prerogative state is a concept that has been studied since the Second World War. It covers different legal systems from the Nazi legal system to the Singaporean system. It includes courts and administrative systems that accord to a normative legal state while granting the state excessive emergency powers to breach legal procedures under a state of exception. Thongchai noted that a few prerogative states allow impunity, with Thailand being one of them.

He argued that the Thai prerogative state differs from others as the elite does not consist solely of the military bloc and the dictatorial one, but also include the royalists, who have dominated since the mid-1990s. In the mid-2000s, the military bloc and the royalists consolidated in response to democratic challenges. The 2006 and 2014 coups, together with the change of reign, helped strengthen this consolidation, to the extent that the Constitutional Monarchy was proposed.

Thongchai explained that “Constitutional Monarchy” is the term that refers to the regime before the 1932 Siamese revolution, where the King allowed the country to have a constitution and a government but he still retained absolute authority over both.

He said there have been attempts to produce bodies of knowledge supporting constitutional monarchy since 1932 onwards. This context has allowed both the prerogative state and royalist rule of law to realign after years of conflict between them. This, therefore, makes Thai jurisprudence a royalist rule of law, which is distinct from the prerogative state in other countries.

In the past decades, the concept of the royalist rule of law has been systematically founded by many legal scholars. The concept is that Thai jurisprudence stems from traditional law where the King was the source of the law and justice and that the true constitution is the monarchy. Additionally, sovereign power has always belonged to the monarchy. The King merely allowed the people to experiment with democracy and when democracy fails, sovereign power will return to the monarchy.

Thongchai stated that national security is the ultimate goal of the prerogative state. The conflict with every prerogative state worldwide centres on the definition of “national security”. He suggested that combating injustice involves more than just fighting lawsuits or laws since the root of the unfair laws is a political matter, claiming the need for “security”.

He said national security in Thailand is used to benefit the military. It engages in businesses by spending taxpayer money, such as on golf courses and land. When an elected government wants to use those lands, it has to buy them back with the taxpayers’ money.

“National security” is also a pretext for destruction, such as evicting people from military land, and it is used to deceive the public, leading to state crimes. Most significantly, national security is the reason the state has been able to impose special laws to cope with the southern insurgency since 2004.

He said the prerogative state has to refer to the country’s history, and so it does in Thailand. In royal defamation cases, the court’s rulings revolve around how significant the King is and how the defendants’ actions impact public sentiment. Thongchai remarked that these considerations are based on a historical narrative of royal nationalism.

Even lacking strong academic endorsement, this historical narrative can become the accepted truth, even stronger than any other truth, through reinforcement from all forms of power in society. He said the approach that Anon Nampa used would result in losing in every case, because what Anon did was tell the truth and the more it is true, the more one is deemed wrong.

“Anon's battle in reality is not about winning his case. But it is the most direct hit on the heart of the royalist rule of law. The battle concerns historical knowledge, especially about 1932, and the role of the monarchy and Thai politics is a matter of life and death”, said Thongchai.

The royalist rule of law must necessarily refer to the 1932 revolution and downplay the importance of the People's Party, also known as Khana Ratsadon. Any discussion of the monarchy's political role is forbidden as that would undermine the entire royalist rule of law.

The royalist rule of law and the prerogative state can coexist because they govern through a state of exception which has 5 key points. The first is that legal cases related to national security are subjected to the state of exception, rather than follow normative law. Thongchai pointed out that the criteria for determining if a case is related to national security is unclear and arbitrary.

The second is that the state holds power over normative law. “Talking about these states of exception is not an abstract thing which is difficult to understand, but rather an easy thing to grasp. It is a state that disregards the normal criminal code and uses arbitrary power,” he said. The third is the special power that comes with a state of legal exception. The prerogative state attempts to create a state of exception in order to exercise special power, as seen in the Deep South.

The fourth is that Thai laws concerning special powers operate on 3 levels. At the first level are the laws that every country has, such as martial law. At the second level are the laws related to national security, such as the 2008 Internal Security Act, which grants the prime minister power and authority. Then at the third level is the state of exception that is prescribed in other laws, even in the 1997 Constitution.

Thongchai remarked that the Thai state has created a multi-layered state of exception. The most explicit example is the Deep South, where if a situation does not fall under one special law, the state can invoke another instead.

“We ourselves misunderstand by believing that the legal system we use is based on the rule of law, so we have the right to bail as a basic right. It is presumed that the accused is innocent until proven guilty and that the burden of proof belongs to the accusers. But in fact, the entire Thai judicial process, including the courts in the name of the King, is part of rule by state of exception,” he noted.

Thongchai argues that the current system is based on the traditional law of absolutism where the accused is presumed guilty until proven innocent.

The fifth is the unrelated issue of national security when it involves lawsuits between ordinary people. He asserted that Thai society operates under a strong patronage system and connections. Even if the prerogative state does not need to arise under the patronage system, other cases still have to deal with these entrenched systems, which is another major issue in Thai society.

The prerogative state is a form of jurisprudence that aims to subdue the people who are believed to be cowardly and ignorant, while the royalist rule of law is used to govern subjects who are viewed as unready for democracy and in need of guidance.

Thongchai said legal techniques to interpret laws aren’t enough for Thai jurisprudents. They need to understand the context and the reasons behind the laws, suggesting that jurisprudential knowledge, which is based on different historical perspectives, should have room to dynamically evolve.

Even though the state has used the law to suppress activists, assuming that the people are too cowardly to retaliate, the people still try to fight through other means. Thongchai reiterated that those who are truly cowardly are the people in the system - the police, prosecutors, courts, and corrections officers- who fear losing their jobs and interests.

He also mentioned the current government, saying that it has never ordered the authorities to stop threatening activists, let alone discussed the amnesty bill.

If the government dares to push the door open, he believes that the hope of people will come back in a big way. One door is to return justice to the Red Shirts and those who died in Pathum Wanaram temple. Another door is amnesty to all political suspects.

Thongchai concluded his speech by saying that TLHR’s battle over the past 10 years is heavier than one thinks as it is fighting against a unique regression in the legal system’s history to correct the law and jurisprudence that has been flawed from the very beginning.

“Bring the heart of the rule of law back into the law. This heart is the rights and freedoms of the people which must not be allowed to be infringed on by the use of state power. That is the heart of the rule of law worldwide,” said Thongchai.

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