Rule by law, not rule of law, in Thailand today: Thongchai Winichakul

1. The months of May and June mark several key milestones in Thai history. There is June 1932 (the People’s Revolution) and June 1946 (the assassination of King Rama VIII), the two bloody crackdowns in May 1992 and 2010, and the coup in May 2014.
We usually take these events as significant moments in political history with diverse implications. But we have overlooked that these events were all milestones in the history of the rule of law in Thailand.
2. The rule of law has many definitions, according to different schools, that differ in the details. But all of them share at least three common principles:
  • Laws are clear and standardized 
  • Everybody is equal before the law. People with power must be under the same laws. Nobody has more legal privileges than others.
  • The entire system of justice (police, prosecutors, courts, penal system) must be independent and fair.
The rule of law is something that democratic societies cannot do without. A society that lacks the rule of law will decline, has no way of becoming a democracy and is a society that is not worth living in, and not worth investing in or doing business in. The lack of the rule of law leads to a failed state.
3. Studies of legal history in the past have been concerned only with the standardization of a written code of laws in the reign of King Rama V (r.1868-1911). We often assume that Thailand has enjoyed the modern rule of law ever since, ignoring the status of the other two principles.
The political crises over the past dozen years have revealed that the entire justice system of Thailand has problems with the police, law enforcement, due process, fairness and an independent judiciary, which is independent only from elected governments and the people, but which in fact is recognized as a tool of illegal governments and the elite.
The Thai legal state is not governed by the rule of law. Rather, laws have been seized to serve the interests of dishonest power in a way that may be described as. ‘rule by law’, but not ‘rule of law’.
The greatest failure of the rule of law in Thailand has been legal inequality. Both the laws and the justice system have helped to establish that certain people and certain groups are above the law, or enjoy legal privileges while other people and other groups are unfairly exploited and persecuted by the law.
Over the past dozen years, when speaking of social inequality, we have been speaking only about economic inequality. Yet legal inequality creates injustice to the point that rage is spreading. There is no way of solving economic inequality without also eliminating legal inequality.
There are plenty of concrete examples of inequality before the law, such as amnesties for those who abuse state power or who commit crimes, the passage of laws to shield certain people from prosecution, and the use of various strategies including the judicial system to ensure that the rich and powerful escape investigation.
4. So why has the constitution become a symbol of democracy in Thailand? It is because the People’s Party intended to establish a system where everybody would be equal under the law, with no exceptions for the elite, and they intended to establish the rule of law as a legal principle based on a written document, and no longer on a person.
So the revolution of 1932 is not yet finished, not merely in with regards to the political system, but with regards to the establishment of the rule of law.
The assassination of King Rama VIII was one key milestone in the history of the rule of law in Thailand. Have you ever thought that IF the laws had really been enforced properly in this case, Thailand’s rule of law might have been immensely different from how it is today because the rule of law would have been confirmed as more sacred and inviolable than anything else.
As the goal of destroying the rule of law was established at that time, Ever since that event became the milestone of the obliteration of rule of law, the Thai state and society have since then gone wrong. The basic written rules have been thrown away and we have returned to relying on the influence of individuals, and created impunity and other privileges for certain groups of the rich and powerful.  The law is used to harm opponents and to exploit and bully the poor and powerless as a matter of course, not just occasionally or in special circumstances.
Impunity has become paired with Thai political and social systems. Those with power use it repeatedly until it becomes part of their behavior.  The powerless and the poor are the victims time and time again. This includes the events of May 1992, where the perpetrators have never yet been brought to justice, and of May 2010 when the elite shamelessly colluded to short-circuit the justice system by imprisoning large numbers of the poor even though in most cases there was insufficient evidence.
5. Thailand under the National Council for Peace and Order (NCPO) is the culmination of this perversion of the rule of law, because barbaric arbitrary power has become regular law where many in the legal profession and the entire justice system are the blatant and obvious tools for perpetuating impunity.
So emerges ‘rule by the outlaw’.
Efforts to establish the rule of law will have to start again from a negative position, which may be even more difficult than searching for a form of political system.  
Thongchai Winichakul