Thanks for the robust debate; now find us a way out

For what it’s worth, Thailand badly needs some real, informed exchanges of ideas on correcting the past to enable us to take the next step.

Except for some subtle personal sparring, the exchanges among several leading law and political science academics, sparked by a statement on September 19 by the “Nitirat Group” (also known as the Enlightened Jurists) to declare null and void all legal actions taken as a result of the 2006 coup must be considered one of the most enlightening academic activities so far.

Whether you agree with the provocative stand taken by the seven-member Nitirat Group or not, the reactions from other law experts have been highly educational to most people interested in trying to find a solution to the ongoing political conflicts.

The Enlightened Jurists want the whole package of legal provisions related to the coup to be nullified, arguing that the coup was illegal.

The “fruit of the poisonous tree” theory is cited to support this proposal. If the tree is poisoned, the fruit can’t be edible, so goes the contention.

Reactions were hot and quick. The Law Society of Thailand, led by Sak Kohsaengruang, issued a statement suggesting the move was obviously to help former premier Thaksin Shinawatra. Nitirat’s chief spokesman Worachet Pakeerut of Thammasat University denies that. He says Nitirat is all about the rule of law. Thaksin’s gains or losses as a result of their move have nothing to do with it.

Sak is adamant that while he agrees the coup was illegitimate, the cause of that unfortunate action was no doubt prompted by severe corrupt practices by the government under Thaksin. He declared: “The Nitirat Group has proposed to cancel the part of the legal provisions that were damaging to former politicians and not to seek justice for society. Corruption is an international crime.”

Kittisak Prokkati, also a Thammasat University law faculty member, casts doubt on the group’s stand. He insists in an article that a democratic system isn’t based solely on what is perceived as the wishes of the majority of voters.

“In the end, respect for the rule of law means that despite what the majority of people want, all legal verdicts must be based on the judgements of a properly instituted and independent justice system.” 

The Nitirat Group cites the case of the German parliament enacting a law to nullify all the verdicts handed down by the Nazi’s “People’s Court”. Kittisak counters that the comparison between the Nazi case and Thailand’s judicial actions after the 2006 coup is not valid. The Nazi’s People’s Court, he points out, comprised five judges, two professionals and three officials appointed by Hitler.

“Judges on Thailand’s Criminal Court for Political Office-Holders were not appointed by the coup leaders. They were all voted to the court by senior judicial officers. The coup leaders had no authority whatever in the appointments,” the professor argued.

Sastra Toh-on, a law lecturer at Rangsit University, chimes in with his analysis aimed at disproving the “fruit of the poisonous tree” argument. He insists that law and political science academics must take a more dynamic view of social issues, instead of just confining themselves to a particular defect. “One must also consider the causes that brought about the coup in order to be able to make an accurate analysis of the problems affecting society,” he writes.

He blames part of the problem on the “decaying of the old legal system that was being crippled by the lack of dynamism.”

Sastra belongs to the school of law experts who believe that any discussion of freedom must go side by side with the responsibility for ensuring social safety. The selective choice of principles that fit one’s own bias while neglecting other equally important considerations is something any jurist true to his profession should try to avoid, he insists.

The Enlightened Jurists aren’t sitting still. They have come back with counter arguments; the basic contention is that coups are illegal and therefore unacceptable under any circumstances.

Then came a group of 23 “law lecturers” who took the Group of Seven to task by suggesting that the latter should challenge “every coup” in the past, all the way back to the first military takeover in 1932 that overthrew the country’s absolute monarchy.

The debate won’t die down easily. But as long as the protagonists stick to a healthy academic exchange and refrain from personal attacks, this discussion will certainly benefit Thai society. For the first time, perhaps, it should be able for someone to disagree with somebody else and not get labelled a lackey of a third person.

But an academic exercise will not offer a solution to society unless all parties concerned can promise to reach a set of thoughts that could lead the country out of the current deadlock.

I am tempted to suggest that we should lock the academics from all sides in a room and let them out only when they can knock on the door to declare: “Yes, we have worked out a way out of this impasse.” Surely, the country’s intelligentsia must be smart enough to offer us a solution. We certainly don’t lack a divergence of views. What we desperately need is for the best and the brightest brains to agree on a way out of this deadlock.