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ОглавлениеIntroduction
Emerging Human Rights in Thailand
After the Thai state violently suppressed a massive prodemocracy protest—itself a response to the metronomic return of military governance just months earlier—in “Black May,” 1992, an unprecedented period arose in Thailand. The military, shamed and chagrined, withdrew from political life, while the progressive spirit inspiring the democracy movement had freer rein than, perhaps, ever in Thailand’s history, and further, it gained an institutional presence unseen previously. Beginning with the Democracy Development Committee, which, through public hearings chaired by Dr. Prawase Wasi, solicited input across Thai society for the drafting of a new constitution, through to the promulgation of the 1997 “People’s Constitution,” the inclusive, progressivist spirit became constitutionally entrenched (Harding and Leyland 2011, 22; Kitchana 2006, 38). Through the 1997 constitution, it also found institutional expression in independent agencies like the Constitutional Court and the National Human Rights Commission of Thailand (NHRC). “Thailand’s most democratic constitution” (Harding and Leyland 2011, 23) was also the first under which an elected prime minister, Thaksin Shinawatra, completed his term, to say nothing of standing for and winning immediate reelection. Indeed, as prime minister, Thaksin initiated policies that were clear violations of human rights—like his war on drugs that led to thousands of extra-judicial executions—the NHRC was unhesitating in publishing “a damning report of the government’s record” (McCargo and Ukrist 2005, 249). This unprecedented moment offered the unique opportunity in rights could grow, for the first time, on a national scale in Thailand.
Based on fieldwork during this singular moment, shortly after the July 2001 appointment of the first tranche of NHRC commissioners and running to 2005, several months before the coup that would oust Prime Minister Thaksin, this book occupies itself with the question of how human rights emerged in Thailand during this period. As the descriptive project it undertakes aims to show, this question is inextricably entangled with the question of why this moment was ripe for the emergence of human rights on a national and constitutional scale. That is, there were egalitarian and, in some ways, nonconformist social, political, and moral resources that had been developing for some time, a generation at least, available to human rights advocates after Bloody May. Drawing on these resources—whether Buddhist scholarship, the egalitarian student movements of the 1970s, everyday practices of face-work and observances of social stratification and rank, or the moral force of motherhood—simultaneously afforded human rights a tint of familiarity that they otherwise lacked for most Thai, while altering the resources on which they drew in novel ways (orienting Buddhism to this-worldly concerns, recuperating leftist politics, inverting power and vulnerability, finding transgressive potential in motherhood).
Human Rights as an Anthropological Object
Attending to the entanglement of human rights with other social, political, and moral forms helps, rather than hinders, thinking of human rights as an anthropological object. It clarifies the understandings, practices, and struggles around human rights that are particular to Thailand and specifies how they relate to one another in contemporary Thailand, albeit with an appreciation of their historical depth. We can see the same sort of thing in the ways that E. E. Evans-Pritchard describes political systems of the Nuer not as isolated social phenomena but as knit into Nuer kinship structures and economy (Evans-Pritchard 1940); or in Pamela Reynolds’s discussion of child labor not as separable from other aspects of Tongan sociality but as coherent only with an understanding of its relation to the specificities of gender, kinship, and economy in the Zambezi Valley (P. Reynolds 1991); or how Clifford Geertz depicts political theatricality in Bali in relation to kinship, patron-client relations, and irrigation practices (Geertz 1980). In other words, human rights become visible as an anthropological object through interconnections with other aspects of sociality in Thailand.
This does not produce a picture of human rights that matches many of the views that dominate human rights debates. It does not accommodate the sort of cultural relativism visible in the Asian Values argument (see De Bary 1998; Falk 2000; Ghai 1999; Kent 1999; Mahbubani 1999) because it finds that Thai human rights advocates articulate human rights principles as consonant with dearly held values like Buddhist ethics. This is not the rejection of human rights (as Western impositions inappropriate to Asian conditions) that one finds in the Asian Values argument. Nor does the picture align with the more widespread view that human rights are necessarily Western, liberal, and freestanding and imply societal convergence on values (sometimes conceptualized as socialization into human rights values) (see, for example, Donnelly 1982, 1989, 1999; Howard 1992; Howard and Donnelly 1986; on socialization specifically, see Risse et al. 1999, 2013; on the interplay of coincidence and coercion as spreading human rights values, see Hafner-Burton 2013; for an argument in favor of recuperating Enlightenment individualism in human rights, see Ignatieff 2001a).
Shifts dating to the early 2000s in anthropological work emphasize local renderings of global human rights and related legal mechanisms, for example, as a process of casting human rights in the vernacular (Merry 2006b, 2008) or as structuring or textualizing local disputes, violations, and subjectivities (Ross 2001, 2003a, 2003b; R. A. Wilson 2003, 2009). These anthropological views constitute an innovation in anthropology’s range of approaches to human rights and helpfully push into the foreground the active reception of global human rights discourses and instruments, disclaiming passive adoptions of a ready-made package of moral and political principles, but they still do not quite capture the way that human rights emerged in Thailand. We might think of them, loosely, as focusing on human rights as an anthropological subject: in large part, they address the structuring influence human rights have on disputes and social actors’ maneuvering with and within such structuring. In this way, human rights appear as a subject, acting on social actors, their conflicts, and the norms and practices for adjudicating conflicts or violations.
One important strand of this scholarship, the emphasis on translation or vernacularization of human rights discourse, has leapt anthropology’s disciplinary borders to become increasingly pervasive in the broader human rights scholarship. Seyla Benhabib, for example, employs vernacularization as the hinge connecting democracy and human rights, as well as allowing for resistance to elite discourses (Benhabib 2009). Christopher McCrudden situates the vernacular differently, finding dignity to perform a vernacularizing function with respect not to the content of human rights but with methods of their interpretation and adjudication (McCrudden 2008). Gerard Hauser engages with Michael Ignatieff’s work as a formulation of human rights not as a set of moral absolutes but as a discourse that offers a moral vernacular providing for “minimal agreement on the necessary conditions for a life worth living” (Hauser 2008, 460). Hauser extends this analysis to distinguish between thin and thick vernaculars of human rights, the former circulating in official public spheres, the latter deployed by victims of human rights violations and their advocates (460). One could continue to trace the path of vernacular and translated human rights into media studies and communication studies (Gregory 2010; Brooten 2013, 2015). There is, then, a widespread adoption of a language-centered, top-down understanding of human rights (even where language may include visual languages, as with Gregory), in which human rights discourses undergo translation or vernacularization.1
By comparison, in what follows, I place greater emphasis on human rights as an anthropological object in that I focus on what social actors do to and with human rights (for example, articulating them with and through Buddhism or harnessing them to the cultural authority of motherhood) and offer an ethnographic description of this work by social actors. I argue that what gave emergent human rights in Thailand their shape, force, and trajectories are the ways that advocates engage, contest, or rework (a) debates around Buddhism in its relationship to rule and social structure, (b) political struggle in relation to a narrative of Thai democracy that disavows egalitarian movements, and (c) regimes of social stratification and face-saving practices. In these ways, human rights emerge in Thailand less as global-local translation and more as a matter of negotiation within everyday forms of sociality, morality, and politics, albeit in relation to nebulous concepts and institutions (like the NHRC), with mysterious rather than transparent powers. Such (re)working is also what has allowed human rights to take on meanings as they articulate with and through other political, religious, and social discourses. I also show, however, that at moments when particular individuals—two mothers caught in land disputes with government bodies—found their claims to rights or entitlements went ignored or unheard, they explored nondiscursive ways to marshal the force of human rights, like gestural expressions of maternal dismay, perseverance, and authority. We cannot, therefore, model the emergence of human rights in Thailand solely on language or meaning but must use other descriptive vocabularies.
Fieldwork
The fieldwork supporting these arguments began in the summer of 2002, during which time I started making contact with the NHRC and the Office of the National Human Rights Commission (ONHRC, the bureaucracy, headed by the ONHRC secretary, that supports the NHRC).2 In the summer of 2003, I continued research at the NHRC and ONHRC, interviewing commissioners, accompanying staff to meetings in which they deliberated cases and to on-site visits in cases under investigation, and engaging in interviews and informal conversation with them at work or, as an example, when we took meals together. I extended this research for roughly six months in 2004, at which time I also interviewed and attended events with former NHRC employees and several figures who worked in closely related fields, like health reform, public health initiatives, women’s rights, and a university human rights program. On the whole, as I will describe in a moment, this fieldwork concerned the struggles of the NHRC and other human rights advocates to define and disseminate human rights principles and to advocate human rights either on a preventive basis (to avoid the occurrence of violations in areas with a high potential for abuse, like prisons) or on a reactive basis, assisting those who had suffered violations.
At the end of 2004, the tsunami that smashed into the Andaman coast (to say nothing of the devastation in Aceh, Indonesia, and Sri Lanka, among other places) drove my research in unanticipated directions. Accompanying lawyers associated with the NHRC, I traveled to three southern provinces badly damaged by the tsunami: Ranong, Phang-nga, and Phuket. There, the lawyers embarked on a number of projects devoted to protecting Burmese migrant workers affected directly or indirectly by the disaster. I traveled with the lawyers’ team to the Andaman provinces through August 2005, as they worked on a DNA testing facility for Burmese who had lost family to the tsunami, rights education programs for foreign migrants, a collaborative rights education project with a local prison holding foreign migrants, anti–human trafficking interventions, and a number of individual cases of rights violations. This portion of the fieldwork also introduced me to antitrafficking and Burmese rights NGOs with which the lawyers worked in Bangkok and Mahachai (south of Bangkok), whose work dovetailed with the projects in Ranong, Phang-nga, and Phuket. In all of their work, the NHRC is either a direct or indirect participant, and so a preliminary sketch of the work it did during its first term will do important orienting work at this point.
National Human Rights Commission of Thailand
The commission consisted of eleven members appointed by the senate (reduced to seven by later constitutions) and is an autonomous body funded by the state and supported by the ONHRC. The ONHRC grappled with a proliferation of subcommissions that dominated their working days and a dramatic growth in cases between 2001 and 2005 (see Tables 1 and 6, below). A product of the 1997 “People’s Constitution” (itself stemming from the 1992 democracy uprising), the 1999 National Human Rights Commission Act is the NHRC’s governing document. The act instructed the Senate to appoint a selection committee of twenty-seven members (with legal, political, and/or NGO credentials), who chose twenty-two candidates. The Senate selected the first eleven commissioners from these twenty-two candidates and included five women, six men: NGO activists, academics, lawyers, an educationalist, and a journalist, giving the NHRC a broad and relevant range of expertise (Harding and Leyland 2011, 227).
We can see a slow, steady growth of complaints to the NHRC in the first full year of the operation, then a doubling, from January to February of 2003, with sustained, high levels in 2003 and 2004. Further, while one notes a general stability from 2003 to 2004 in the distribution of complaints as sorted by the type of accused party, there are massive changes in two categories: state project/policy, law, and government officer. Cases falling into one category could easily fall into the other, and it is not clear that the redistribution represents a shift in the type of violators from one year to the next or differences in how cases were sorted. The lack of data from 2004 on cases by type of violation is especially regrettable here, as one notes that in 2003, the proportion of cases by state project/policy, law, and police combined is almost exactly equal to the largest proportion of cases by violation, due process. A correspondence seems plausible, but with no way to track it from year to year, it is hard to arrive at any conclusion with confidence. Ultimately, though, what these data reveal is that, from its infancy, the NHRC served a significant and growing population. This trend continues, the cumulative average of annual cases only leveling off in the low 660s after 2011 (see Table 6; the NHRC source for Table 6 counts cases by budget year, from October of one year through the end of September the following year, accounting for the discrepancy with Table 1, which counts from January through December).
NHRC Data 2002–2004
Figure 1 shows the decreasing fluctuation in the number of cases approaching the present, remaining in the mid to low 600s over the last four years. This leveling off of an annual caseload is the achievement of a degree of endorsement by the Thai populace, of normality (not least in the sense of embodying or reflecting norms). It shows the NHRC as a reasonably, reliably accepted venue for leveling complaints of violation. That this level of acceptance has wavered only slightly through regime changes, coups, and the appointment of new commissioners as term limits arrived speaks to the institutional approbation and permanence enjoyed by the NHRC.
The process of filing a complaint has changed somewhat since the foundation of the NHRC, when it was located at 422 Phayathai Road, in the heart of Bangkok, a short walk from two Skytrain stations (the elevated metro system), down the road from the National Stadium and several major shopping malls. The Anti–Money Laundering Office remains at that address, but the NHRC has moved to a less accessible government complex near Don Muang Airport, in the northern extremity of Bangkok, well past the last of the Skytrain or subway stops. In the early 2000s, as Table 5 shows, one could file a petition by phone, mail, email, or in person (the latter of which was greatly facilitated by the NHRC’s location). In Rattana Sajjathep’s case, which I discuss in Chapter 4, she approached the NHRC in person to lodge her complaint. An ONHRC staff member received her complaint and, as they do with complaints received through any of the other means, generated a report. After the preliminary report is ready, a small working group (typically four or five staff members in the cases I observed directly) discusses the nature and merits of the complaint, deciding how to categorize it (that is, as a violation of a particular human right), and who the stakeholders are (as aggrieved parties—in Chapter 4, we will see that entire families may be included as co-petitioners even though only a single member of the family files the complaint—and as rights violators). The working group would draft a report that the NHRC could present to the National Assembly, use to urge the parties into mediation, or provide a paper trail tracking a case as it continues to unfold (often in close contact with the party who filed the petition). As we will see in Chapter 3, however, the NHRC can undertake investigations unilaterally (without a petition filed from outside) and/or in concert with independent organizations (like the Law Society of Thailand). Currently, the NHRC website also offers a hotline and a link with a template for online complaints but has no dedicated address for mail-in filing. Despite its increased inaccessibility by public transit and by mail, Table 6 and Figure 1 show that the public continued to file petitions in high numbers, indicating the sustained relevance of the NHRC to the Thai public, even in times of political upheaval.
Table 1. Complaints Received (by month/year)
Table 2. Complaints by Region in 2003
| Region | Proportion |
| Bangkok | 20.39 |
| Eastern | 5.06 |
| Upper northeast | 7.92 |
| Lower northeast | 8.57 |
| Upper north | 15.97 |
| Lower north | 9.09 |
| Western | 7.66 |
| Upper south | 9.09 |
| Lower south | 4.16 |
Table 3. Complaints by Violation in 2003
| Violation | Proportion |
| Foreigner/alien citizenship | 3.14 |
| Assets/property | 2.29 |
| Health/environment | 4.83 |
| Assembly | 7.13 |
| Labor rights | 4.23 |
| Youth/education | 0.97 |
| Family | 0.72 |
| Political rights | 0.48 |
| Freedom of communication | 0.48 |
| Disability | 0.85 |
| Dwelling | 6.16 |
| Due process | 55.56 |
| Other | 13.16 |
Table 4. Complaints by Accused, by Percent
| Type | 2003 | 2004 |
| State project/policy, law | 38.41 | 6.22 |
| Police | 17.75 | 21.56 |
| Military | 0.85 | 1.88 |
| Administration/locality | 8.09 | 9.41 |
| Physician | 1.21 | 1.56 |
| Teacher | 2.17 | 2.75 |
| Government officer | 4.35 | 18.23 |
| Employer | 4.11 | 3.18 |
| Private individuals | 7.97 | 7.69 |
| Business | 7.13 | 12.16 |
| Other | 7.97 | 15.05 |
Table 5. Complaints Received (by delivery method)
| Proportion | ||
| Type | 2003 | 2004 |
| Letter | 57 | 76.7 |
| Phone | 20.53 | 3.76 |
| 3.38 | 1.88 | |
| In person | 16.67 | 17.08 |
| Raised by NHRC | 1.69 | 0.43 |
| Private organization/interest requesting mediation | 0.72 | 0.14 |
Sources: คณะกรรมการสิทธิมนุษยชนแห่งชาติ (2002, 2003, 2004); (NHRC Annual Reports, 2002–2004)
Table 6. Annual Cases from 1 October to 30 September
| Year | No. of Cases (1 October–30 September) | Cumulative |
| Average | ||
| 2002 | 230 | 230 |
| 2003 | 815 | 523 |
| 2004 | 616 | 569 |
| 2005 | 760 | 617 |
| 2006 | 644 | 622 |
| 2007 | 768 | 646 |
| 2008 | 706 | 655 |
| 2009 | 695 | 660 |
| 2010 | 707 | 665 |
| 2011 | 694 | 668 |
| 2012 | 609 | 662 |
| 2013 | 665 | 663 |
| 2014 | 635 | 661 |
| 2015 | 606 | 657 |
Figure 1. Annual NHRC petitions. Source: http://www.nhrc.or.th/NHRCT-Work/Statistical-information/Statistical-information-on-complaints/Yearly-(2548-Now).aspx.
The existence of the NHRC is interesting in its own right, emblematic as it is of its moment in Thailand’s political history. What I explore in this book, however, is the way that efforts to establish what human rights are and what they mean, as well as how to disseminate them, advocate for them, and protect them—work importantly but not exclusively done at the NHRC—are also ways of exploring and transfiguring everyday social forms and conventions. Experiments aimed at articulating human rights with and through ordinary morality and sociality (by discovering them in Buddhism; employing conventions of face-work, social status, and rank in their pursuit; or recovering political arguments for an egalitarian society) give human rights in Thailand their particularity while also introducing a turn in morality, sociality, and politics. I explore these themes throughout the chapters of this book.
Chapters
Probably the single most influential nexus of legitimacy in Thai politics is the point where Buddhism and power meet. Chapter 1 focuses on the way that Buddhism figures in the formulation, defense, and deployment of human rights, both overtly (in the speech and writing of commissioners) and implicitly (as organizing principles in the practice of human rights advocacy). Casting human rights as Buddhist involves, I argue, engagement with ongoing debates on Buddhism and this-worldly action, promoting a specifically egalitarian view of Buddhism that draws on the scholarship and following of the late monk Buddhadasa Bhikkhu (who prioritizes nibbana over kamma).3 On one level, this scholarship offers human rights advocates a theoretical foundation, allowing them to present human rights as ordinary (because Buddhist), as possessing a familiarity, once properly understood, that can lift the cloud of confusion many Thai encounter with respect to human rights. On another level, this view of Buddhism subtly implicates itself in the practice of human rights advocates, sometimes in unexpected ways, as this chapter explores through anti–human–trafficking initiatives and projects to educate incarcerated foreign migrants of their rights. While it is by no means given that human rights and Buddhism will prove reconcilable (as, for example, Leve [2007] demonstrates in Nepal), here they provide an opportunity to rework the dominant view of Buddhism and, in doing so, becomes wedded to Buddhism in a defining way.
Chapter 2 moves from the emphasis on Buddhism and politics to examine the influence of democratic struggles on the NHRC’s vision of its mission and its heritage, as well as the specific implications this influence holds for human rights practices. Prodemocracy uprisings and their suppression by military and paramilitary organizations in 1973, 1976, and 1992 are all significant for the NHRC, but not all carry the same importance or approval among Thai more generally. In particular, I look at how the NHRC recuperates and inherits the “failed” protests in 1976, which have largely been expunged from the narrative of Thai democracy (Thongchai 2002) but that were probably the most conspicuously egalitarian of Thailand’s popular movements. Positioning human rights as emerging from (rehabilitated) leftist protests of authoritarianism gives human rights their shape and direction, imbuing them with this particular egalitarian ethic, but I argue that this inheritance goes beyond, so to speak, the story that the NHRC tells of its origins. The further influence this history exerts on the NHRC comes through the Ministry of Public Health (MoPH), which was welcoming to those students-turned-insurrectionists of 1976 who, upon receiving amnesty in the 1980s, relinquished armed struggle. The MoPH became home to many of them, and many refocused their energies into the nascent NGO movement. I have already alluded to the place that NGOs had in the selection and constitution of the NHRC’s first tranche, but I also examine in this chapter how specific individuals, drawn from the MoPH, brought their MoPH experience to bear on human rights practices through the ONHRC. In part, I show how this influence produced competing models of human rights advocacy and practice (a preventive model and a reactive, juridical model), creating a tension that was not definitively resolved but rather induced differing strategies for different actors.
Chapter 3 describes the work of lawyers and their team in post-tsunami Ranong, Phang-nga, and Phuket. The lawyers, from the Law Society of Thailand (LST), were connected to the NGO Labor Rights Promotion Network (LPN) and worked with the backing of the NHRC. I explore how everyday social practices of face-work, observances of difference in status, and conventions of patronage (especially in ranked institutions like the police), all of which typically favor the powerful, provided the lawyers with important leverage in pursuing the rights of, arguably, the most vulnerable people in Thailand, Burmese migrants. In the aftermath of the tsunami, chronically vulnerable Burmese in Thailand found themselves in acutely precarious circumstances, having lost family members, homes and belongings, and legal documents like visas and work permits. Always wary of Thai officials, they could not bring themselves to participate in the Thai state’s DNA testing program (to identify those killed by the tsunami) or place trust in the police to protect them from the heightened threat of abuse by employers or human traffickers. Indeed, they saw the police as potentially connected to human trafficking. The LST lawyers embarked on programs to address these and other concerns but frequently met with police indifference, expressing the disdain that many Thai feel for the Burmese. The chapter attends to the ways that the lawyers deployed human rights in combination with the social conventions mentioned above, in an experimental fashion, to generate force behind the rights of Burmese (and other foreign) migrants. Beyond the immediacy of the tsunami, though, the lawyers also engaged in NGO work with the LPN and the Thai Action Committee for Democracy in Burma (TACDB). I study how they engage in longer-term antitrafficking projects in cities like Mahachai, a port near Bangkok, in industries, like fisheries, that have especially high rates of human trafficking and slave labor.
Chapter 4 studies the long-term struggles of Yai Hai Khanjanata and Rattana Sajjathep with the Thai state and the city of Bangkok to recover, respectively, farmland flooded twenty-seven years earlier by a state dam and a Bangkok house slated for demolition, ten years previous, under dubious circumstances, by the city. Having protested without significant progress toward a hearing with state and city agencies, both Yai Hai and Rattana resorted to desperate tactics. The chapter describes how, having gone unheard for such long periods, they combined the moral authority of motherhood with provocative, extraordinary gestures to gain public support for their demands for justice. These bold gestures coincided with the infancy of the NHRC, which was able to play an important mediating role with state and city officials. The thrust of the chapter, then, is that Yai Hai and Rattana’s ability to embody familiar, potent tropes (like motherhood) to express their determination and dismay through well-executed and highly visible gestures, as well as draw on the institutional power of the NHRC, was decisive in the resolution of their campaigns.
Chapter 5 assesses the changes in fortune of the NHRC as the national organ for human rights promotion and protection after night descended on the extraordinary moment of human rights’ emergence. That is, from the early 1990s through 2006, Thailand experienced roughly fifteen years of unprecedented progressive politics, even budgeting for the excesses of the Thaksin government. That progressive moment (dominated by elected government, the rise in stature and force of human rights institutions and discourse, and a growing freedom of political expression) entered its twilight in 2006 with the coup that ousted Prime Minister Thaksin.4 This chapter addresses the return of the coup-election-coup cycle of governance, beginning with the royalist Yellow Shirt protests of Thaksin in 2006. The chapter does not intend to present a thorough account of the political maneuverings of the myriad political factions and interests but rather judges the implications of successive military governments, constitutions, and dramatic enhancement and application of the lèse-majesté law for human rights.
Anthropology of Human Rights
Thinking about how one takes human rights as an anthropological object involves this work in ongoing but quite recent discussions within anthropology that have freed themselves of the previous straightjacket of cultural relativism. As I mentioned at the outset, a focus on the social life of human rights5 provides the broad parameters into which this study fits. What human rights advocates in Thailand impressed upon me, though, is that it is less what human rights do to actors in a given situation that allows for a clear picture of human rights’ social force than what social actors do with human rights as ways of working out relations among themselves. That is to say, human rights in Thailand are a mode of relating to one another but a novel, emergent mode that attaches in unforeseeable and unexpected ways to long-established social practices and conventions. This book describes Thai social actors’ preliminary efforts to make sense of and judge the dimensions and implications of this emergent form of relating and attends to the mutually transfiguring force that human rights and the modes of sociality with which they entangle exert on one another.
