Edging towards the rule of law

2 September 1998

A couple of years ago, Thailand was described as "perhaps the best example of high-growth capitalism without the rule of law". But something is happening. This government is churning out a mass of new legislation. The new constitution seriously expands the judicial structure. The press is filled every day with stories of court cases (which is a big change from a few years ago). A few lawyers are emerging as public and political figures. Even humble fishermen are making a stand for the enforcement of law.

These shifts are not just technical. The role of law is changing. And such a change reflects some bigger change in society and politics. So what is going on?

Some of the pressure for change comes from the outside world. This reflects a big change in the international context. During the Cold War, western powers urged poorer countries to become "development states’. They helped the poorer countries to set up planning boards and investment incentives. They helped to develop a local business community which would be the allies of the west in opposing the spread of communism. In all of this, the western powers paid very little attention to such things as legal systems, judiciaries and constitutions.

In the last few years since the collapse of the Cold War, all this has changed. The western powers are no longer interested in development and development states. Instead, as a thoughtful young political scientist, Kanishka Jayasuriya argues, they now promote "regulatory states". Western companies and, especially, western finance has expanded overseas rapidly since the collapse of the Cold War and the Bretton Woods system. In the past, these firms had to play by the local rules. Now they want to make the outside world a safer place to operate, by introducing the sort of laws these firms are used to back home.

So now western governments and financial institutions are shouting at smaller states to get out of the development game - by closing down their planning boards and investment incentives - and get into the regulation game - by strengthening their central banks, beefing up judiciaries, and updating laws (especially relating to commerce). This formal government pressure is matched by a more informal campaign for "good governance" and the extension of the rule of law.

But laws and outside pressure may not be as effective as some hope. Back in 1992, the passage of the Environment Protection Act was heralded as a landmark in Thailand’s legal and social history. The provisions of the Act met international standards. The Act had widespread popular support. Experts called it "a remarkably informed and progressive document". But in practice, the Act has been almost completely ineffective. Courts have turned away cases, and judges have fumbled tough decisions.

Why has such an important and heralded law been so ineffective? In 1992, the historian and critic, Nithi Ieosiwong, reviewed Thailand’s sad history of written constitutions. These documents, he argued, were often flouted and regularly torn up, not so much because they were an imported western idea, but rather because they never reflected the real state of political forces. They had no roots in the local political culture. However, Nithi went on, Thailand (as all countries) has an unwritten "cultural constitution". This non-existing document defines the roles for king, Buddhist Sangha, bureaucrats, generals, parliamentarians, local influential persons, and other key players, and sets out the "rules of engagement" between them. This "cultural constitution" governs how the country is really run. It changes along with changes in the social make-up. Paper constitutions come and go like the monsoons. But the cultural constitution can never be torn up.

In the same way, there are written laws and "cultural laws". The Environment Act enshrines the idea that big influential people should not be allowed to wreck the environment for personal gain. They should be prevented, or made to pay. But the "cultural law" does not seem to be ready for this. Under the cultural law, the big influential person can do almost anything. Similarly, advocates of stricter regulation want financiers to be punished if their gambles go badly wrong or their peculation gets out of hand. But under cultural law, failed financiers have the privilege of running away, because investigation and retribution might weaken public trust in the financial system as a whole.

Of course such cultural laws are violently unfair. That is because they simply reflect the unfairness built into the political order, into Nithi’s cultural constitution. The idea that law should be fair is a western idea and a relatively new one. Some 200 years ago in England, the law laid down the death penalty for stealing a sheep. This was not particularly fair, but it helped to protect the property of the powerful landed aristocracy. Such laws disappeared only after social changes and mass movements transformed the political structure. The same will be true here.

Under the shadow of the economic crisis, this outside push for Thailand to update legislation, institute good governance, and advance the rule of law has been very powerful. But ultimately this push will come up against Thailand’s cultural constitution and cultural laws. The result will not be a clash. More like watching a bulldozer drive into a swamp.

But at the same time, there are signs that the cultural constitution is changing rapidly because of the big social shiftss of the economic boom, and now the harsh shock of the crisis. These changes are throwing up internal challenges to the old cultural laws. These are more complex and may ultimately be more important than the outside pressure. Here are a few pointers:

1. Corruption charges against politicians are nothing new. Indeed they reached a crescendo under the Chatichai and Banharn governments. But in the past the focus has been on abuse of power by ministers in office. Now things are different. Politicians on both sides of the house are under scrutiny. And the charges relate not just to the abuse of ministerial power, but to the broader manipulation of influence, often for illegal financial gain. Smuggling luxury cars. Acquiring suspect timber. Persuading the police to drop charges against unruly sons. Taking part in the gutting of the Bangkok Bank of Commerce. Only recently, MPs could expect to get away with such things as part of the privileges of being a "big" person.

2. Calls for reform of the police are nothing new, and several reform investigations have come to nothing. But the graphic exposure of bribe-taking on the television screen has started a small avalanche. Now hardly a day passes without a news report of police being suspended or transferred because of involvement in drugs, gambling and the flesh trade. Just recently, several hundred were transferred in the north for suspected involvement in the amphetamine business. A police general whose notoriety stretches back over twenty years, has finally been suspended. When the Cabinet decided to shift control of police from the Interior Ministry to the Prime Minister’s Office, there was barely a murmur of dissent. Only very recently, there would have been a howl.

3. The rural doctors pointed to systematic corruption in the pricing of pharmaceutical supplies to public hospitals. At first the reaction was predictable: the minister denied any problem and refused to investigate because he did not want to "embarrass" senior officials. The affair seemed destined for the fate of the great computer scandal, which disappeared behind a blizzard of funny information, counter-allegations, and ineffective inquiries. But the doctors stuck to their story. The pharmacists came out to back them. Senior ministry officials broke ranks and confirmed the charges. This sort of thing, they said, had been going on for ages. Now is the time to stop it.

4. For years small-scale fishermen in the south have tried to keep the big boats out of inshore waters. Environmentalists support them because the big boats trawl-nets catch too much immature breeding stock. The law also is on the side of the small-scale fishermen. But all to no avail. Yet recently, small-scale fishermen around Phangnga bay got together and persuaded the provincial authorities to listen to them. Within a short time, similar groups had appeared up and down the southern coastlines. In Songkhla they persuaded the authorities to enforce the inshore limits. The big-boat fishermen countered with a show of force which reversed the decision. But the issue is now on the public agenda. Local authorities have to find reasons to explain why they fail to enforce the law.

In all four cases, challenges are being made to illegal activities which have been going for so long that they seemed part of the culture.

In most of the cases, the crisis has probably spurred the impetus to mount a challenge. The doctors are squeezed by budget cuts. The fishermen face growing competition over resources. Many who spoken out against the police clearly feel that informal payments are no longer good value.

In all instances, people have got together to mount the challenge. In the health example, an existing organisation (the rural doctors) has managed to log-roll support among other organised groups. Among the fishermen, the example of group action in one area has set off a shock-wave down the coastline. The challenges to police and politicians have come together in the shared space of the media and public debate.

In all cases, too, the challenges demand a different standard of behaviour by public figures. Policeman, MP, health bureaucrat and provincial official are being challenged to explain why they practice or condone activities which are patently illegal and which betray the public trust.

This is not a change from black to white. Few expect that politicians and officials are metamorphising into angels. Rather there is a shift along the spectrum of grey. Slowly the idea of a standard of behaviour for a "public servant" or "public figure" is being shaped.

The outside pressure to advance the rule of law will probably generate a lot more paper law. But the pressure from below is changing the culture.