Dictatorship on Trial in Thailand - Transcript

00:00:02

Duncan McCargo - This is the Nordic Asia Podcast

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00:00:03

Duncan McCargo - Welcome to the Nordic Asia Podcast, a collaboration sharing expertise on Asia across the Nordic region. I'm Duncan McCargo. I'm the director of the Nordic Institute of Asian Studies and a professor of political science here at the University of Copenhagen. It's a great pleasure today to have with us Tyrell Haberkorn, who's a professor at the University of Wisconsin, Madison, where she works on Southeast Asian studies, but particularly issues to do with Thailand, with state violence, with human rights, with impunity. Welcome, Tyrell, to the Nordic Asia podcast.

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00:00:40

Tyrell Haberkorn - Thank you so much for having me, Duncan.

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00:00:43

Duncan McCargo - This is a huge pleasure. Now, of course, you've been virtually popping up quite a bit in the Nordic region lately. You were in Stockholm just the other day talking about Lese Majesté and you were last year in Lund examining a PhD thesis. I'm sorry, we have to get you over here, but this is another chance to engage in conversation and continue our discussions about topics of great interest.

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00:01:08

Tyrell Haberkorn - I am I am very excited to do so virtually or in person. It's marvelous to visit the Nordic region.

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00:01:14

Duncan McCargo - Right. OK, well, as I mentioned, you've been working a lot on issues that relate to human rights, impunity, state violence. And you've just won this very prestigious Guggenheim Award to continue your work in this area. Perhaps you could tell us something about the idea for your latest project, which I believe is called Dictatorship on Trial in Thailand.

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00:01:37

Tyrell Haberkorn - Absolutely. By way of introduction, what I've worked on until now in that sense has been, as you noted, tracing the history of impunity, how it's created, how it's maintained over a long period of time. And this new project, in a sense, almost takes a completely different tack, both temporally and in terms of goal dictatorship. Trial is an attempt to think through how impunity might be challenged and undone. Using the most recent regime of the National Council for Peace and Order that came into power with the twenty fourteen coup officially stayed in power until the March 2019 election still continues to exert a lot of power in politics. It's an attempt to think through very methodically, up close examination of the courts and through the process of what different kinds of court decisions might look like to try to imagine a more just future, a future with less impunity.

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00:02:40

Duncan McCargo - All right, I guess the thing that some people might be puzzled by, and I'm sure you can explain to us, is if we compare the period that you're talking about this 2014 to 2019 era of the National Council for Peace and Order in the wake of the military coup of May 2014. If we compare that period with other recent eras of Thai political history, ranging from 1976 to 2010, that period wasn't really marked by large scale episodes of mass violence. So what's the nature of the state violence that you're examining in this superficially at least relatively, quote unquote, peaceful period?

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00:03:20

Tyrell Haberkorn - You're exactly right. The five years of the NCPO on the surface may seem quite benign. Beneath that seemingly benign surface, the NCPO launched a quite strong attack on ideas of rule of law and human rights through extensive use of the law of prosecution for political issues of political freedom and freedom of expression, political demonstration. But they did it all through the courts. So it's very different, for example, than certainly than instances of mass state violence and even from other periods. If we think of the 1960s and 1970s and 80s, where there was a lot of extrajudicial violence, disappearances and killings to Thailand's political opposition, the NCPO took a different tack. They instead chose to deploy both existing law as well as very numerous - over five hundred and fifty - orders and announcements that they issued unilaterally that immediately counted as laws to constrict political freedom significantly over over those five years. The other reason why the law is so significant, and this comes back to the reason why the project is called dictatorship on trial and really focuses on the courts, is that when extrajudicial violence did arise during the period of the it very often arose in the context of the exercise of the law. So people who were tortured were those who were arrested and later prosecuted for the deaths that occurred in custody. So the NCPO has taken a tactic that has been used by a lot of authoritarian regimes to, in essence, rule by law and I think largely in an attempt to try to maintain some veneer of legitimacy. But as soon as you scratch the surface, you see that the place of the law, particularly just and not particularly legitimate, right?

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00:05:20

Duncan McCargo - Yes. As a kind of paradoxical nature of this violence, of course, it all leads back to the questions of impunity that you talked about before. It's a major theme of your work and the focus of your last book In Plain Sight, Impunity and Human Rights in Thailand that came out in 2018. So what exactly is the impunity problem in Thailand from your point of view? The impunity problem is that through a series of laws, structures, as well as the general unwillingness of individual state officials to push for accountability as well as institutions. Police, military, other civil servants have been able to get away with repressing civilians for decades and decades, and that these individual pieces of it extends from both the instances of mass violence that you mentioned. It means things like the April, May 2010 crackdown. Right. Accountability remains not possible as well as very everyday forms of state violence. So, for example, the routine torture of people who are picked up by the police, the other place where impunity becomes very visible. And as I've been working on dictatorship on trial, I've become very, very intrigued by this process in many ways. I think that one of the foundational moments that creates impunity in the polity for all sorts of kinds of violence and for preference of the state over the people is through coups and through the ways in which countries are able to use the law to protect themselves from being held to account, either the army as an institution or any of the armed forces as an institution, and also the individual members of juntas or people who serve them. I've come to see this as foundational to modern Thai political history.

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00:07:19

Duncan McCargo - To the essence of the problem on one level is simply that nobody in authority has ever really been brought to account for any of these actions.

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00:07:30

Tyrell Haberkorn - Yes, yes. Even when there have been a few moments, there have been there have been a few moments, particularly in the last 20 years, where. Yes, for example, at the level of the court of first instance, a state perpetrator has been found accountable, but it has almost always been overturned at either the Appeal or the Supreme Court level. And even the cases that have made it to the courts have been incredibly rare, because not only does impunity make it very difficult for state officials to be held to account, but it also means that people who are survivors or victims or families of victims, those who do dare to speak out, often face stringent harassment from those who hold power. So it makes speaking out very, very perilous. And so it's rare that people are able to do so.

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00:08:27

Duncan McCargo - So in pursuit of not exactly a solution, but a way forward here, I understand you're proposing in your project a couple of things that sound very radical, drafting a legal indictment for the NCPO or the military junta, and then perhaps even more intriguingly, rewriting key judgments of the NCPO period. And how do you envisage this process working out in practice? So the indictment, in a sense, is the easier part. So the idea of the project is that one of the main assertions of the NCPO when they launched the coup is that they had to launch the coup because the past 10 years had so much political contention and disorder and destruction of the rule of law. So they were going to restore law and order, it turns out. I would argue they they do the opposite. There is a kind of order by the alive out of an underneath of repression, and they don't restore the law. I would argue they really destroy the law through the ways in which they use it. So the indictment is a very condensed history of the five years of the NCPO told in relationship to the bodies of law that are relevant in Thailand. So the criminal code, the Constitution and then Thailand's international human rights obligations. So in a sense, it's saying, look, and NCPO, you said you are going to restore the rule of law. Here are the ways in which you even violated the letter of the law, let alone before we even talk about ideas of justice. So I've decided to prepare, in a sense, the the history of the NCPO in that form and then the rewriting judgments. Part of the project is one that has been inspired by a theme in feminist legal studies, where feminist legal scholars around the world until now in all Anglophone contexts, have taken key judgments and rewritten them using the law that exists at the time the judgment was rendered all but interpreted them in a new way to reflect principles of most of these projects have been around questions of gender justice, but to reflect the real possibility of gender in the law. And what they've argued is that, look, the law itself, it has the possibility to offer real substantive justice for gender violence, for division of assets, all sorts of matters where gender comes into play by the ways in which the courts have interpreted the law, have examined evidence and have told the story about what happened in a case means that gender

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00:11:10

Tyrell Haberkorn - equality, gender justice are still elusive. And I first read about this in the context of Canada. It started in Canada in the early 2000s and then realized that this is something that could be done in the context of thinking about human rights violations in Thailand,

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00:11:27

Duncan McCargo - because I'm just imagining, having worked on some of this in the book I did, Fighting for Virtue and looking in detail at some of the court cases that I can just imagine going through something like the summary judgment and rewriting it as it should have been rewritten in a half-rational world. But it's a bit tricky. But these documents are long and complicated and messy. I imagine this being a fairly enormous undertaking, even to tackle just a few of the key judgments.

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00:11:54

Tyrell Haberkorn - So far it has been so... So the way in which I've been working, I should start out by saying I was so excited to learn about these projects taking place in various parts of the world and very intriguing to try to begin. And then what I decided I would need to do is first translate the judgments that I wanted to rewrite, which is also a way of reading them quite closely. And then in a sense, it then means stepping way back from whatever ended up on the page of the judgment and thinking about the evidence that was presented in court. What was in the context of the charges, the various declarations to the court, and imagining the different kind of story that might be told. And I have found it very, very challenging, very exciting, but very challenging. One of the suggestions that I've taken from the examples in other contexts is that I realize it has been just to tell a different story with different actors at the centres. So, for example, in the case against the NCPO for treason and rebellion brought by the civil society group, Resistant Citizens (phonlamuang thoklap) a year after the coup, when the Supreme Court rules on that case, fi nally, in 2018, they don't discuss the claims to damages made by the 15 plaintiffs in their indictment. In fact, they only name the first named plaintiff, even the names of the other plaintiff. Aren't included in the Supreme Court judgment. So if you start and of course, the Supreme Court judged that the coup was legitimate and was not treason or rebellion, but if you start by telling the story of t he damages experienced by 15 civilians under the coup regime, all of a sudden it begins to open a different way to think about treason and rebellion because the people come into view where they're not in view in the actual decision by the Supreme Court.

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00:14:02

Duncan McCargo - Right. I had the same kind of experience reading those court case judgments that I looked at because you'd see a whole procession of defense witnesses will be called saying rather different things. And that entire testimony would often be condensed into a single paragraph whilst the testimony of a number of police officers saying, well, it's exactly the same thing over and over again would run to multiple pages in the same judgment that the disparity of attention between one side of the case, that another that's reflected in those judgments is often extremely alarming, to say the least.

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00:14:34

Tyrell Haberkorn - Yes. And so if you imagine rewriting it in a different way so that you don't have the repetition of the prosecution's view and their witnesses for a different outcome becomes imaginable.

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00:14:48

Duncan McCargo - But it seems like a pretty daunting task. I have to say Tyrell, rather you than me,

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00:14:54

Tyrell Haberkorn - Like I said to someone the other day, s o far, this has been both the most exciting and most perilous undertaking I have experienced. But on the good days, it's exciting and fun.

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00:15:07

Duncan McCargo - Absolutely, yeah. Do you think there are any signs that the much discussed justice cascade that issupposed to be a phenomenon, a global phenomenon, could reach Thailand any time soon? Given the shortcomings of the Thai legal system, the conservatism of the courts, is there any sort of awakening taking place that gives you any grounds for hope?

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00:15:30

Tyrell Haberkorn - I have no hope in this regard, particularly since 2021. Again, if you had asked me in August of 2020, I would have said yes, I see hope because of what was happening in the streets. But now of course that there has been a crackdown on the democracy movement, part of which was very seriously questioning the way in which the judiciary operated. Now that those very activists are being subject to a very repressive use of the law, I don't have a lot of hope. And in a sense, it has made me think about why do this project now, why I try to imagine justice in a context in which it seems so impossible. And I think part of the answer is that to imagine what justice might look like and to assess the gap between the present and what that just future looks like is one form of critique. I also see it as part of the continual intellectual and analytic work of preparing the ground for some future. A future. I don't know. I don't know when the justice cascade will reach Thailand, if it ever does apologise for the hopelessness. But that is absolutely what I think at the moment.

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00:16:40

Duncan McCargo - No, indeed. And I think many of us would feel the same. I was certainly more optimistic in 2012 doing field work during that period before the coup, that there was progress of sorts taking place. But it's hard to sustain too much of that optimism at this point. But if we look to the other side, then do you think that you can see any grounds for hope in the activities of the civil society sector groups like Thai Lawyers for Human Rights, are they making a contribution that helps us to see ways forward in the world to try justice?

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00:17:13

Tyrell Haberkorn - Very much so think the work of Thai lawyers for human rights, i-Law, the groups organizing around a new constitution and then even some of those in the streets are doing really crucial, inspiring, phenomenal work. And in the case of Thai Lawyers for Human Rights, their work is also one of the key inspirations for rewriting judgments initially. This project was just going to be the indictment, and I spent time doing a lot of reading about the cases that and observing some cases where Thai Lawyers for Human Rights had brought, administrative court, constitutional court, civil court, criminal court cases against the state. And they brought these cases. They're still bringing them, but they brought them throughout the NCPO period, even though there was a very slim chance that they were going to win in a conventional way, i.e., the court was going to recognize their complaints about the ways in which various state agencies and individuals were acting. But I think it's crucial because every time they criticized the way in which, for example, the Ministry of Justice established the prison in the 11th Military Regiment based in Bangkok, an administrative court case against that order, they force the Ministry of Justice to explain why they established the temporary prison on the military base to hold civilians. And they also forced the administrative court to figure out how they were going to justify that in relationship to existing Thai law. And I think that's until it makes me think there's a book by Jules Lobbel called Success Without Victory about US Civil Rights cases. And he writes really eloquently about all of these cases, but failed to win in the courts and says these are essential, it is essential to keep doing this work, to set the stage and to be a form of encouragement for the future and for activists in the present. You know, don't concede, don't allow the state to be the only arbiter of what counts as justice, is what counts as rights and force them to justify their actions.

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00:19:24

Duncan McCargo - Right. I think it's a dilemma for many of us because, for example, I spent a lot of time looking at media thinking this is a source of hope and something outside the state sector. Then I came to the conclusion that, no, I have to confront the core elements of state power. And having done that, I think I'm going back to looking at some of the rock as we go round and round with this dilemma.

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00:19:46

Tyrell Haberkorn - Very much so.

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00:19:48

Duncan McCargo - I mean given recent developments in Thai politics since the election of March 2019, which you've already alluded to. Do you think the era of dictatorship has really ended? Are we living in a post NCPO era or is this just NCPO 2 or something of that kind?

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00:20:04

Tyrell Haberkorn - This Duncan, this is the question I, I am waiting for, for the comparative politics scholar, I'm looking right at you to tell me what kind of regime is thisd, because I think it's very difficult to identify exactly what it is. And I find, I think it is NCPO 2, it's not NCPO light, in many ways, ff we look at what happened in the last.... Exactly. It's worse. It's worse. And yet it's happening with a gloss of electoral democracy attached to it. And and I'm continually surprised how many otherwise well-informed people don't realize that it is, in fact, a gloss, those elections were not free or fair. So what exactly do we call this and how do we think about it? I mean, the other question for you certainly is that when I can answer by thinking around the region or even globally, I think the Thai regime is not unusual. There's very similar kinds of repression and similar relationships to elections and the trappings of democracy. And yet the actually existing regimes are not democratic. I think it's one of the looming tasks for scholars is to figure out what characterizes these regimes, how did they come to be and what are the ways in which citizens are able to challenge them in these really constrained times.

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00:21:35

Duncan McCargo - And what does all this mean for your project, though? Because you have this idea of focusing on the NCPO era with specific start and finish dates, which is always nice for a project or an article or a book title or something. What do you do when 2019 isn't really the end of the NCPO, analytically and in terms of your project, are you just going to say, well, that's my cutoff point, I won't look at anything after that? Or are you going to have to review that?

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00:21:59

Tyrell Haberkorn - I will have to review that question. There are some practical matters that make it a little bit easier. One is, I should say I so far and this could change. I'm open to changing. But thus far I am just thinking about cases at least that were initiated during TPO version one. So 2014 to 2018, I imagine I will have a very long epilogue about what happens after 2018. But the really practical reason is that the decisions that I am rewriting are those which have reached their conclusion. So cases that have either been decided at the Supreme Court or that there's been a constitutional Court ruling. So that means there are almost all cases the only ones that have made it all the way, those actually that go up to 2017, 2018. Right.

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00:22:52

Duncan McCargo - Yes. And I realize that's very important because some of the cases I looked at like Jon's case, the different levels of courts completely reversed the earlier decisions. And so it wasn't until we got to the last one that we had any idea what to say.

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00:23:07

Tyrell Haberkorn - Exactly.

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00:23:09

Duncan McCargo - You need the final verdict, for better or worse. So that situates you to some extent. That helps. There's something to be said for just coming up with an arbitrary cutoff point for any project so that you could then move on a variety of fronts.

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00:23:24

Tyrell Haberkorn - Exactly. Otherwise you could think, well, no, I should wait to see what happens with this round of cases that I started. And then it will instead save those for something else, right?

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00:23:35

Tyrell Haberkorn - Absolutely. You've already, for the final question here, alluded to the student protests that we saw emerging, particularly from July 2020, which have seen an unprecedented level of open debate and criticism of the establishment by young people highlighting issues with Thailand's political structures, including, most importantly of all, calls for the reform of the monarchy that were previously imagined as taboo topics that couldn't be aired in public to those developments suggest any need for you to rethink any of the assumptions behind your project. I think that, if anything, the current movement, and particularly the protest in the last three months surrounding the courts themselves. Yes. Have made me an even greater sense of urgency. And in fact, during a protest in early March, I felt like protesters had already figured out what I was getting a whole book trying to write. Oh, so there was a protest and a Saturday evening that ended up in front of the Criminal Court. And activists were calling for they were released on bail of their fellow activists, Penguin Anon and others, and for about half an hour between trying to ascertain the exact time the sign was up. But let's just say between seven and eight p.m., there was a very large poster that was leaned up against a photograph of King Vajiralongkorn in front of the court complex on Ratchada Road, and it was a declaration calling for the release on bail of the activists who were and are still being detained for their peaceful protest. They wrote it in the form of a court decision. So they instead of saying 'san aya' or criminal court, they had written on it 'people's court'. Yes, they issued their declaration in the name of the people. I found this utterly remarkable and very beautiful and inspiring. And I feel like and of course, it was very quickly taken down and seized by the police because to make that kind of is a dangerous one in Thailand. In Wales, the court is not of the people, but it has, in a sense, the kind of action going on around. And critiques of the judicial process in this current moment has turned into an inspiration to think and write more quickly because there is so much interest and there is so much at stake for those who are dissenting. I mean, it seems if we just think about the last three months and the detention of the activists, the courts have really become a focal point of discussion and criticism.

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00:26:19

Tyrell Haberkorn - I think the widespread knowledge about courts in Thailand, it is now at a very high level. Yes. And I sometimes think about the difference of political consciousness between my home country of the US and Thailand. And I feel like political consciousness in Thailand is far, far higher. And I think a piece of it is that those very people are very, very concerned with how institutions that impact their lives operate. And and I think I think this is a very positive sign. I think that it's very unusual, as I think about about protests since the 50s. I think this may be this is probably more of a research question rather than an answer and I don't have the evidence to really make this claim. But it's a question. I suspect this is the most sustained criticism of the court and and the first time that the court itself has so, so significantly become the centre of protest attention.

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00:27:26

Duncan McCargo - Well, on that relatively positive note, I think we'll have to bring this fascinating conversation to an end. But thanks so much for joining the Nordic Asia podcast.

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00:27:35

Tyrell Haberkorn - Thank you so much for having me.

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00:27:39

Duncan McCargo - So I'm Duncan McCargo, director of the Nordic Institute of Asian Studies. I've been in conversation with Tyrell Haberkorn, a leading specialist on contemporary Thailand, who is a professor of Southeast Asian Studies at the University of Wisconsin. Madison. The Nordic Asia podcast is showcasing Nordic collaboration in studying Asia.

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00:27:58

Duncan McCargo - You have been listening to the Nordic Asia podcast