LAW AND SOCIETY

By William J. Klausner

In reflecting on the inadequacies of the system of parliamentary democracy and the need for its further maturation, one should not overlook the role of the monarchy in this context. The Thai monarchy should be perceived as safeguarding, enabling and energizing the body politic until the political system is sufficiently mature to do so itself. Several times over the past two decades His Majesty has single-handedly interceded to defuse armed confrontation between democratic and authoritarian groups and encourage peaceful resolution of the conflict and the consequent resumption of some semblance of political stability. In so doing the monarchy has effectively provided parliamentary democracy with the time and political space to develop and affirm its own political bona fides and credentials. How successful the Thai democratic system has been in moving towards this goal is another question. Some have argued that the accelerated engagement and direct involvement of His Majesty in what might be viewed as the minutiae of the everyday functioning of government indicate extreme frustration with the performance level of the present system of parliamentary democracy and its obvious inefficiencies, corruption ,and lack of political will.⁽¹⁸⁾ His Majesty's intervention could be seen as a clarion call to those holding the levers of parliamentary political power to clean up their act and get down to the business of responsible governance.⁽¹⁹⁾ Hopefully, the not-so-coded royal messages will be heeded, though the possibility cannot be discounted that they will not. If those in political power continue to place their personal interests over national interests, the public will further lose faith in the system.

If, generations from now, future monarchs continue to play this now legitimized more intrusive role in the domestic affairs of governance but do so without the benefit of the present King's exalted stature, charisma, experience, judgment, compassion and wisdom, one might predict that the "symbol of unity" could be compromised and greater social and political division, conflict and tension would follow. Such an outcome could place great strains on the democratic system and on the basic stability and order of the Thai body politic.

Given the lese majeste legislation on the books, the monarchy is in the enviable position of having free reign in the definition and execution of what all accept is a unique version of constitutional monarchy. Given the unquestioning loyalty to and reverence and support of the populace for the present King, the lese majeste law does not represent any divergence from social reality and customary behavior. However, one must not discount the possibility that the lese majeste concept could come under more scrutiny and criticism if it is manipulated and misused by power brokers such as government officials, politicians, and businessmen to settle political scores; or if future monarchs, unlike the present King, failed to personify the characteristics of a Dhammaraja, a just, virtuous and wise King ruled by the Dharma, the embodiment of the ten kingly virtues: almsgiving, morality, liberality; rectitude, gentleness, self-discipline; non-anger, non-violence, forbearance and non-obstruction.⁽²⁰⁾

Pressures for protection of individual rights and greater accountability and transparency in all forms of administration is further evidenced in the increased level of public dissatisfaction with and criticism of the criminal justice system. There is a growing appreciation of the absence and/or inadequacy of existing safeguards on the rights of the accused during both the pre-trial investigation phase and the trial itself. The public today is far less prepared to acquiesce in both the monopoly and the abuse of power on the part of the police during the pre-trial investigative process. At present the police have the sole authority to initiate and undertake criminal investigations and to carry out interrogations. They also enjoy extensive authority to make searches or arrests without warrants and, where not permitted, to issue the warrants themselves, as well as to detain suspects up to seven days without informing other concerned agencies. There is a growing consensus that such police power, so often abused, should be curbed. Recommendations have been made to enable public prosecutors to play a greater role in the investigation and collection of evidence; to limit police authority to carry out search and arrest without warrants by transferring power to issue search and arrest warrants to the courts; to enable defense counsel to be present during interrogation of the accused, etc. There have been some modest steps toward greater transparency and accountability, at least within the Office of the Attorney General. A mechanism has recently been established whereby those dissatisfied with the handling of a criminal case by either the police or the public prosecutor can appeal directly to the Attorney General. The final decision to prosecute or not is to be published, accompanied by the reasoning behind such decision.⁽²¹⁾

The previously sacrosanct judiciary has itself had to bear the brunt of acerbic criticism of its rampant internecine factionalism, alleged corruption and unacceptable delays in judgements rendered. There have been grow demands for more judicial transparency and accountability, e.g., the recommendation by a parliamentary committee to include outside representation in the Judicial Commission, presently restricted to sitting and retired judges, which determines appointments, promotions and transfers of judges.

Just as in other spheres, the administration of justice will have to be responsive to the changing values, attitudes and demands sweeping through the Thai body politic at the present time. Reforms focused on greater appreciation of individual rights, as opposed to duties, may be expected. If such reform is blocked by institutions determined to maintain their traditional power bases and the associated hierarchical value structure, one may expect social and political confrontation and unrest to follow.⁽²²⁾

In the field of labor relations, changing social and economic conditions and political pressures necessitate a continuing reassessment of the relevant laws, e.g., minimum wage, right to form unions, right to strike, etc. If social, economic and political disorder and instability, along with confrontation between labor and political authorities as well as management, are to be avoided or mitigated, the laws must be revised and amended so as to take into consideration changing social, economic and political conditions and accepted norms of behavior. When the laws have been so changed, it is imperative they be enforced in order to avoid feelings of resentment, disenchantment, and disaffection. In 1980 the National Statistical Bureau estimated that approximately one third of the laborers in Bangkok and its environs were not paid the minimum wage to which they are legally entitled. There has been little change in this percentage over the past decade.

The reality of an estimated almost one million illegal migrant laborers in Thailand presents another stark example of the divergence between law and practice. It is estimated that about half of this illegal population is Burmese and the remainder Chinese, Lao, Cambodians, Pakistanis, Bangladeshis, Nepalese and Sri Lankans. While it is conventional wisdom that such labor is a key factor in much of the economic growth in provincial areas.⁽²³⁾ It also cannot be denied that such unregulated and illegal labor can have adverse effects on the health and social stability of the communities in which they reside. The influx of such labor has resulted in diseases which had disappeared in Thailand suddenly resurfacing, e.g., drug resistant malaria, polio and elephantiasis. It may he predicted that ethnic tensions will escalate as will criminal activity associated with this influx, e.g., smuggling, drugs and prostitution. One must also factor AIDS and other sexually transmitted diseases, which do not recognize borders, into the equation. There are, of course, adverse effects on the illegal migrants themselves. As illegals they enjoy no health benefits and work for much less than the minimum wage. They are easily taken advantage of and their right ignored as they are subjected to constant threats, abuse and extortion.

Part 6

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(18) His Majesty, in well-publicized speeches, has offered advice, criticism and exhortations relating to construction of dams, flood control, traffic and pollution. His Majesty is closely identified with and has helped initiate, over the past forty-five years, some 2,000 innovative government funded Royal projects in the conservation and management of natural resources, alternative crops and practices, rural and community development, primary health care, etc. His Majesty has also quietly sent signals and exercised behind the scenes influence in the carrying out of foreign policy, constitutional reform and specific legislation.

(19) Though less frequently, the Queen has also encouraged the government to take action in solving problems adversely affecting the Thai body politic. Most recently, the Queen expressed serious concern with the deteriorating pollution of the capital's environment. While the government quickly responded by establishing a committee to determine the most efficacious steps to solve Bangkok's hazardous levels of pollution, the public was left to ponder why constitutionally elected governments, far too frequently, fail to tackle obvious problems until goaded and prodded by Their Majesties.

(20) For a controversial and revisionist interpretation of the role play and interconnections among the monarchy, the system of parliamentary democracy, and civil society see Kevin Lewison, "The Monarchy and the Future of Democracy in Thailand." Murdoch University Asia Research Center Workshop on Locating Power: Democracy, Opposition and Participation in Thailand, October 6-7 1994.

(21) For a detailed, perceptive analysis of the abuses, inadequacies and inefficiency of Thailand's criminal justice system and recommended reforms, see Dr. Kittipong Kittayarak's unpublished draft article, "Criminal Justice Reform in Thailand; Current Problems and Future Prospects."

(22) The system of legal education in Thailand is not conducive to producing lawyers, judges, or public prosecutors who could play the role of "social engineers" in reforming the judicial system or in critically examining the issue of the discrepancy between the law and custom and taking an active role in bringing about balance. A Thai law degree is an undergraduate degree, and the students are not grounded in the liberal arts tradition. Coupled with legal teaching focusing on strict definitions and adherence to the codes, the student finally emerges with a very narrow vision and perspective. There has been some pressure on the part of forward-looking academics to make law a graduate degree, but there is no progress to report at this date.

(23) On the other hand, some have argued that such migrants only fuel the labor intensive industrial expansion and, therefore, stifle initiatives to move to more up-scale value industrial development.