Morning Memo: Down by Law

Lawyers everywhere argue definitions of terms, interpretations of clauses, and whether or not particular acts or circumstances fit those terms and clauses as defined and interpreted in their arguments before a court. Judges everywhere do the same when making and justifying their decisions. The law may be an ass everywhere, but in countries that follow “rule-of-law” it is an exhaustively rational ass that, while liable to being bent out of shape, is rarely actually broken in the legal proceedings in and before a court.

In Thailand, as in much of Asia, what we witness is not so much “rule-of-law” but “rule-by-law”, which means that law is applied selectively and interpreted strategically rather than universally and rationally.

It means that the law is both political and personal, and, given that the personal is the political in Thailand in a way that ’68ers never imagined might be the case if their beloved formula were actually put into practice, it means that “persons” rule in Thailand, not law.

So when Thaksin Shinawatra was looked on favorably by the military and the bureaucracy and the palace, henceforth to be known as the phuyai or “big people”, and he was charged with deliberately concealing assets during his first election campaign as head of Thai Rak Thai, it was the duty of the court to find him not guilty and thereby allow him to slide into the Prime Minister’s chair with a clean record.

A few years later, when he had enraged the bulk of the phuyai by refusing to act like “one of the boys” in dealing out graft and sharing power amongst the usual suspects, a specially convened court found him guilty of helping his wife buy a piece of property. Oddly enough, the property in question was bought at market rates and it is difficult to see why it required the weight of the PM’s office to get the sale closed.

No matter. The military coup that had removed him from office had been justified by charges of corruption, so it was the court’s duty to find him guilty of corruption. The difficulty for the court was not so much to find instances of corruption that would “stand up” in court as it was to find an instance that did not risk involving supporters of the junta and the wider circle of phuyai. And given the near-impossibility of that task, they did well under very adverse conditions.

Since that time, a Thaksin “nominee” administration has been removed from power by this sort of “legal” means and the present incarnation under Thaksin’s sister Yingluck has been blocked from exercising its constitutional legislative powers by equally suspect “legal” decisions on a number of occasions. It seems that we are about to have another such decision put an end to both this administration and the planned elections that would undoubtedly return it to power and reinforce its legitimacy.

Given that this “rule-by-law” approach is SOP in Thailand and has been brazenly used repeatedly over the past 7 years, it is curious to see so many commentators on the situation puzzling over the legality of such things as delaying the election.

Legal arguments do not decide how things are done in “rule-by-law” states, just how what is decided and done is justified after the fact. The difference is immense.

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