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The Next FrontierNational Development, Political Change, and the Death Penalty in Asia$

David T. Johnson and Franklin E. Zimring

Print publication date: 2009

Print ISBN-13: 9780195337402

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195337402.001.0001

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(p.397) Appendix D: Thailand

(p.397) Appendix D: Thailand

Source:
The Next Frontier
Publisher:
Oxford University Press

Contexts

The large and rapidly developing nation of Thailand is culturally and politically distinct from most of the rest of Southeast Asia. With an area somewhat larger than California and about the same size as France, Thailand was home to nearly 63 million people in 2007, making it the ninth most populous country in Asia and the 20th most populous country in the world. About 95 percent of Thai people are adherents of Theravada Buddhism, a religion that is in many ways central to Thai identity and culture (Jackson 2003). The country has close to 300,000 Buddhist monks (one for every 210 people), and two key Buddhist values are the commitment to abstain from taking life (the first of five precepts in the pancasila code) and the principle of nonviolence (ahimsa). Nonetheless, Buddhist authorities have taken little action against the death penalty, and many leading monks support the institution (Alarid and Wang 2001; interview with Amnesty International chairperson Somsri Hananuntasuk in Death Penalty Thailand Blog, January 31, 2006).

There are at least three reasons for the tolerant attitudes toward capital punishment among Thailand's Buddhist monks. First, most monks come from rural regions of the country where support for the death penalty is especially strong. Second, many monks lack information about the reality of capital punishment in their country. Since the death penalty is “not considered a pressing issue in Thailand,” the media, the government, and NGOs direct little attention toward it, and public ignorance is one result (International (p.398) Federation for Human Rights and Union for Civil Liberty 2005:11).1 Third and perhaps most important, “political authorities strictly control the Buddhist administration” in Thailand (14). The supreme patriarch of the nation's Buddhist sangha (congregation) is appointed by the king; the state (through the king) has sole power to bestow ecclesiastical titles on monks; and the law forbids monks from making political statements (15).

Thailand had one of the world's highest rates of economic growth between 1985 and 1996, averaging almost 9 percent annually until the Asian financial crisis occurred in 1997. The Thai economy floundered for some time thereafter, but by 2002, annual growth was back above 5 percent. The financial crisis hit the middle class hard, but the most intense pain was felt by tens of millions of Thais whose incomes fell under, or close to, the poverty line as real wages dropped and prices and unemployment rose. Many have still not recovered. According to the World Bank's 2006 World Development Report, 32 percent of Thais live on $1 to $2 a day. The comparable figures for Indonesia, Brazil, and Argentina are 52 percent, 22 percent, and 14 percent, respectively (Studwell 2007:179).

The singular feature of Thailand's government is the influence and importance of the king in politics. The octogenarian monarch, Bhumibol Adulyadej, is not a figurehead in the tradition of Japan's postwar emperor but a real ruling force and a critical center of power during the frequent constitutional crises that have visited Thailand since he ascended to the throne in 1946 (Handley 2006). In other respects, the Thai government “has long echoed the polity of the Philippines,” with the similarities today “more apparent than ever” (Studwell 2007:181). Most notably, the Thai economic elite has increased its control of the country's political process by winning a growing share of seats in the nation's parliament. This development reached its peak with the rise of Thaksin Shinawatra, a billionaire businessman and politician who is often compared to Silvio Berlusconi, the “tycoon populist” who combined vast wealth, a virtual media monopoly, and “rank criminality” during a multichapter career in Italian politics (Stille 2006; see also Pongsudhirak 2006; Rafferty 2006).2 Thaksin became Thailand's prime minister in 2001 and was (p.399) reelected to that post by a landslide in 2005 before resigning in 2006 following street protests against his rule and the party he led (Wehrfritz and Cochrane 2006).3 After a snap election marked by controversy, a military coup took over the government in September 2006, sending Thaksin into self-imposed exile in Europe. It was the country's 18th coup since Thailand became a constitutional monarchy in 1932.4

Thailand carried out 26 judicial executions during Thaksin's period as prime minister, and police, military, and other government officials summarily killed at least 4,000 persons extrajudicially (“Silent Night” 2004; Munsgool 2007; “A Law” 2008).5 That is 12.5 times more extrajudicial executions than there were judicial executions in the entire country during the 65 years before Thaksin took power. Thaksin himself seemed to authorize the lethal violence when he declared that “because drug traders are ruthless to our children, being ruthless to them is not a bad thing. It may be necessary to have casualties.…If there are deaths among [drug] traders, it's normal” (quoted in Macan‐Markar 2007). Thaksin also blocked several attempts to investigate the extrajudicial killings that occurred under his leadership. In August 2007, while he was in exile in Britain, Thailand's Supreme Court approved a warrant to arrest him for crimes of corruption, and Thai human rights advocates were lobbying to have him booked for murder as well (Macan‐Markar 2007; see also appendix G).

(p.400) Capital Crimes, Death Sentences, and the War on Drugs

Thailand has 51 capital offenses on its statute books and a large volume of death sentences issued by its trial courts (International Federation for Human Rights and Union for Civil Liberty 2005). The number of persons on death row tripled during the first three years of Thaksin's rule (2001–2003), and by the end of 2004 there were 971 persons in the country who had been condemned to death: 855 men and 116 women (Hands Off Cain 2004; International Federation for Human Rights and Union for Civil Liberty 2005:9,32). As of September 2006, 757 condemned prisoners were appealing their death sentences at an appeals court or the Supreme Court, and 58 percent of their cases were for drug offenses. Of the 87 women appealing death sentences, 84 percent had drug convictions (Death Penalty Thailand Blog, September 16, 2006). According to Amnesty International (2007b), Thailand is one of five Southeast Asian nations in which “the majority of death penalty cases are for drug crimes.” A death sentence is mandatory for many offenses in Thailand, including the manufacture and distribution of drugs, of which methamphetamine is deemed the most worrisome. The government's “war on drugs” is in many ways a crucial context for understanding recent death penalty developments, for its popularity has made it “very difficult to dissociate the question of the death penalty from drug issues in the Thai context” (International Federation for Human Rights and Union for Civil Liberty 2005:11).6

More broadly, the war on drugs and related “get‐tough” policies have resulted in a huge rise in Thailand's prison population, from 73,309 inmates in 1992 to 257,196 in 2002—a 250 percent increase in only 11 years (International Federation for Human Rights and Union for Civil Liberty 2005:29).7 By 2002, Thailand not only had the highest incarceration rate (401 prisoners per 100,000 population) of all the countries in East, South, and Southeast Asia (except for the tiny jurisdiction of the Maldives), its incarceration rate was almost triple the average rate of the 22 other jurisdictions in these subregions for which data are available (see International Centre for Prison Studies, www.kcl.ac.uk.depsta/law/research/icps). Prison conditions in Thailand are frequently wretched, although “money talks” for the few who have it—as is also the case in the Philippines (Fellows 1998; International Federation for (p.401) Human Rights and Union for Civil Liberty 2005:30). Inmates on death row are required to wear leg chains 24 hours a day, and prisoners believe “the size of the chains [for condemned drug offenders] relates to the quantity of the drugs” involved in their crimes (International Federation for Human Rights and Union for Civil Liberty 2005:32).

Figure D.1 depicts the distribution of death sentences by year for the 11 years beginning in 1996, the only period for which data could be obtained. The annual number of first-instance death sentences remained level at around 100 per year for the four years 1996–1999 before quadrupling during the next three years. From a peak of 447 death sentences in 2002, the number fell back by about one‐quarter in 2003 and then remained fairly steady at around 300 death sentences per year for the next three years. The most likely cause of the spike in death sentences in 1999–2002 is Thailand's campaign against drug trafficking. An official “war on drugs” was not declared until February 2003, but antidrug offensives were launched before that. The stepwise increase in death sentences at the turn of the century also seems consistent with a causal account that stresses changes in punishment policy rather than shifts in rates of violence or other criminal offenses.

Executions

Although death sentences in the most recent years are three to four times more numerous than they were in the years before the new millennium, executions have remained rare events as they have been for decades, largely because the king commutes most death sentences. The gap between death sentences and executions is striking. The 447 death sentences generated in 2002 was 124 more than the 323 executions that the government recorded in the 72 years 1935–2006.8 In its peak death sentence year of 2002, Thailand had more than twice as many death sentences as the United States (447 vs. 169) but a lower rate of execution per million (0.18 vs. 0.25). Table D.1 presents the yearly count of executions since 1935.

Table D.1 shows that executions in Thailand were unevenly distributed over the past seven decades, with one of the years (1939) accounting for fully 15 percent of all the executions that have occurred since Thailand changed from death by beheading to death by gunshot in 1934. Conversely, 27 of the 72 years had zero executions, and these years cluster together, with one six-year streak (1945–1950), one eight-year streak (1988–1995), and two three‐year moratoria (1952–1954 and 2004–2006). As in South Korea, where executions were bunched in the period before 1998, the uneven distribution of executions in Thailand suggests that its execution patterns are the result of policy choices made by the central government. One aspect of that policy has been to execute mainly murderers and persons (p.402)

Appendix D: Thailand

Figure D.1 First-instance death sentences in Thailand, 1996–2006 Source: Data from the Thailand Court of Justice, translated and interpreted by Parichart Munsgool.

(p.403)

Table D.1 Executions in Thailand, 1935–2007

Year

Executions

Year

Executions

Year

Executions

Year

Executions

1935

1

1953

1971

2

1989

1936

0

1954

1972

14

1990

1937

1

1955

4

1973

4

1991

1938

4

1956

2

1974

12

1992

1939

48

1957

1975

1993

1940

0

1958

1976

1994

1941

9

1959

3

1977

14

1995

1942

8

1960

8

1978

7

1996

1

1943

12

1961

4

1979

7

1997

2

1944

4

1962

11

1980

4

1998

2

1945

1963

15

1981

4

1999

16

1946

1964

3

1982

5

2000

1

1947

1965

5

1983

2001

11

1948

1966

3

1984

15

2002

11

1949

1967

7

1985

2

2003

4

1950

1968

2

1986

6

2004

1951

3

1969

4

1987

16

2005

1952

1970

1

1988

2006

Total

323

Source: Data from Thailand Department of Corrections 2007; see www.correct.go.th/commit.html (last accessed November 6, 2007).

who have committed offenses against the king or the security of the kingdom. Of the 323 executions that occurred between 1935 and 2006, 81 percent were for some kind of homicide offense, while 10 percent were for offenses against the king or the kingdom, and less than 9 percent were for drug offenses (data from the Thailand Department of Corrections, obtained by Parichart Munsgool, November 2007).

In addition to the uneven clustering of executions in Thailand, there has been some downward drift in executions over time. After only 12 executions in the decade of the 1950s, the average number of executions in the 1960s, 1970s, and 1980s—nearly six per year—was more than twice the annual average (2.8) for the period since 1990. And strikingly, there have been no executions in 12 of the 20 most recent years (1988–1995 and 2004–2007).9

(p.404) The King and Clemency

The decision about whether and when to execute is controlled by Thailand's central government, with the king playing two key roles. First, any condemned offender may file a pardon petition, and no execution is permitted until the king has rejected it. Although the data from Thailand's Department of Corrections cover many fewer cases of pardon petitions than of death sentences (315 petitions submitted vs. 1,641 death sentences issued in 2001–2005), the probability that a petitioner will succeed in obtaining a punishment reduction is quite good. In 2004, 78 of 82 petitions received a commutation (95 percent), and 98 of 110 did in 2005 (89 percent).10 In developed countries such as Japan and the United States, executive clemency in capital cases has declined substantially in recent decades as political leaders have responded to forces in their political cultures that have discouraged acts of mercy that would (p.405) mitigate penal severity (Sarat 2005; Shikei Haishi Henshu Iinkai 2005). In Thailand, by contrast, “the vast majority of persons who are sentenced to death benefit from the royal pardon” (International Federation for Human Rights and Union for Civil Liberty 2005:27). In this respect, Thailand resembles the Philippines before it abolished in 2006, though of course clemency in the Philippines was a presidential prerogative, not a royal one (see chapter 4).

The second critical power the Thai king possesses in the administration of capital punishment is the discretion not to act on a pardon petition, which prevents the possibility of execution. Thus, the king can stay executions by refusing to act in addition to proactively conferring mercy through grants of clemency. He routinely does both.11

In the mid‐1990s, when executions resumed after an eight‐year moratorium, it became clear that King Bhumibol had grown more willing to reject appeals for clemency. Thai observers offered two interpretations of a change in policy that was unaccompanied by official announcement or explanation: some thought the king “had just become impatient with society as his reign neared its end,” while others supposed that in the context of the government's law‐and‐order crackdown the king had come to conclude the death penalty was “a utilitarian means of keeping order” (Handley 2006:375). Whatever the causes of the executioner's comeback, two consequences seem clear: it altered the king's image from compassionate and forgiving to one of tougher justice—“making him someone to fear as much as to love,” and it “set an example for justice generally”—and perhaps for the extrajudicial executions that took place in subsequent years (Handley 2006:375; see also appendix G).

The gap between death sentences and executions in Thailand is among the largest to be found in jurisdictions that retain capital punishment, perhaps matched only by California, Pakistan, and the Philippines before its second abolition. The Thai government reported 27 executions and 2,150 death sentences in the seven years after January 2000, a ratio of one execution for every 80 death sentences. There is no evidence that the execution risk is rising in the new millennium, for 85 percent of the country's executions since 2000 had already occurred by the end of 2002. At the time of this writing, Thailand has just entered the fifth year of a moratorium (2004–2008) that receives little recognition inside the country or out.

King Bhumibol may be the most important proximate cause of the postwar stops and starts in execution displayed in table D.1 (Handley 2006:374), but if he is, we do not know what moves this devoutly Buddhist leader to change his mind so frequently (there have been 12 stops or starts since 1945). And if the king is not the main moving part, then it would seem either officials in the Ministry of Justice are able to influence the flow of pardon petitions that make their way to (p.406) the throne, or (as some Thai insiders believe) the prime minister is able to pressure Ministry of Justice officials to carry out the execution of some death row inmates whose clemency decisions the king has delayed.

Leadership from the Throne

The mechanisms used to administer capital punishment in Thailand differ from those used in other Southeast Asian nations, but the low rate and episodic pattern of executions is similar to other countries in the region. The republican government of Indonesia has even lower execution rates than Thailand, and the temporal trends in recent Malaysian executions seem roughly parallel to those in Thailand. Similarly, the infrequent and sporadic pattern of executions in the Philippines between its two abolitions resembles the pattern that has prevailed in Thailand for more than 60 years. It is therefore unclear how much of the substance of Thailand's death penalty policy can be attributed to the distinctive government structure that regulates death sentences and executions.

But one element of Thailand's death penalty policy does clearly differ from most other nations in the modern world, and that is the strong influence of a reigning monarch. “Leadership from the front” is a common feature of the reduction and abolition of capital punishment in many parts of the world (Zimring 2003:22), but Thailand is one of only a few Asian nations in which there is potential for what could be called “leadership from the throne.” Royal influence was one element of Nepal's abolition in the late 1990s (Hood 2002:43), and in tiny Bhutan a Buddhist king was the principal force responsible for ending capital punishment in 2004. In Thailand, King Bhumibol may have possessed this potential power for decades but not used it (International Federation for Human Rights and Union for Civil Liberty 2005), and he may well be the last monarch in that country to possess such significant authority (Handley 2006:427).

There is both irony and poetic justice when hereditary royal authority—one of the oldest forms of concentrated power—becomes a principal means for limiting a government's power to punish.

Notes:

(1.) The Thailand surveys that have been done indicate high levels of public support for capital punishment (International Federation for Human Rights and Union for Civil Liberty 2005:11). Our table 8.1 also cites a poll that revealed 84 percent public support for the death penalty in 2005.

(2.) Thaksin's first career was in the police force, where he served from 1973 to 1987, and he is the only Asian leader we know to have earned an advanced degree in criminology. In 1978, he received a doctorate in criminal justice at Sam Houston State University in Texas, where he wrote a dissertation titled “An Analysis of the Relationship between the Criminal Justice Educational Process and the Attitude of the Student toward the Rule of Law.” Many Thais wondered about Thaksin's own attitude toward the rule of law during the widespread extrajudicial killing that occurred while he was prime minister in 2001–2006 (Macan‐Markar 2007).

(3.) In May 2007, Thaksin and 111 members of his party were banned from engaging in politics for five years by Thailand's Constitutional Court (Paddock 2006; “Party” 2007). In March 2008, Thaksin pleaded not guilty in the first of several criminal corruption cases brought against him. Three months later, three of his lawyers were found guilty and sentenced to six months in prison for attempting to bribe Supreme Court judges who were hearing a high‐profile case against Thaksin and his wife. Their $60,000 bribe was brought to the court hidden in a cake box, leading the Thai media to call the case “pastrygate” (Head 2008).

(4.) On the eve of an election in December 2007 that was supposed to return power to a civilian government, Thitinan Pongsudhirak, a professor at Chulalongkorn University in Bangkok, said, “Thailand is stuck in an anachronism. We have a neo‐feudal hierarchy that is untenable. It's just incompatible with the 21st century. This contest between the older established order and the newly emerging order is being played out in the twilight of the king's glorious reign” (quoted in Mydans 2007b). Except for the absence of royalty, similar conflicts between old and new have characterized politics in the Philippines (see chapter 4; see also Karnow 1989; Berlow 1996; Steinberg 2000; Studwell 2007).

(5.) Thaksin's government drew up lists of suspected drug dealers and other undesirables, and some of them were summarily executed after leaving police stations where they had gone to turn themselves in (Hands Off Cain 2004). Other extrajudicial killings have occurred in the country's southernmost provinces where Islamic insurgents are active. From 2004 to 2008, an estimated 3,000 people in those provinces died as the result of police and military abuses (“A Law” 2008; “Thailand Fears” 2008). Here, too, there are parallels with the Philippines.

(6.) As in most death penalty systems, “the poor and uneducated are over represented” on Thailand's death row (International Federation for Human Rights and Union for Civil Liberty 2005:22; Hadji‐Ristic 2007). Of the 49 death row inmates who indicated their level of education in a 2004 survey, 19 said they had only attended primary school.

(7.) By the end of 2004, Thailand's prison population had declined to 195,000, apparently because of a general pardon issued by King Bhumibol on the occasion of the queen's 72nd birthday in August of that year. About 40,000 of the prisoners were women (20.5 percent) and 9,000 were foreigners (4.6 percent), including 5,000 Burmese, 2,000 Cambodians, and 1,000 Laotians (International Federation for Human Rights and Union for Civil Liberty 2005:29).

(8.) Three of the 323 executions were of women, the most recent in 1999 (International Federation for Human Rights and Union for Civil Liberty 2005:33).

(9.) Thailand changed its method of execution to lethal injection in 2003, and officials said the change was made to make the process more humane and to bring the country into compliance with article 7 of the International Covenant on Civil and Political Rights (International Federation for Human Rights and Union for Civil Liberty 2005:35). In October 2003, a ceremony was held to mark the transition: monks prayed in the execution room; outgoing executioner Chavoret Jaruboon handed his duties over to a prison staff that would perform four lethal injections later that year; the German‐made HKMP‐5 submachine gun that had been used in many of the previous 319 executions was locked up in a crate; 319 balloons were released into the sky to represent the souls of the executed convicts; and the old execution area was turned into a museum (Hands Off Cain 2003). Before 2003, executions were carried out by gunshot in the back. The condemned stood behind a screen, tied to a pole and blindfolded, and the executioner would ask for forgiveness from the prisoner. “A target was painted on the screen which was placed between the prisoner and the submachine gun stand, thus allowing the executioner to pull the trigger and fire the hail of bullets through the bulls‐eye marking, without seeing his real target” (International Federation for Human Rights and Union for Civil Liberty 2005:10). For a photograph of this execution scene, see Richard Clark's Web site (www.richard.clark32.btinternet.co.uk/bangkwan.jpg), and for a critical review of “a distasteful book” written by Thailand's last gunshot executioner (Chavoret Jaruboon), see the Death Penalty Thailand Blog entry for November 22, 2006 (http://deathpenaltythailand.blogspot.com).  In 1934, death by gunshot replaced death by beheading because the new method was considered cheaper, less complicated (no ritual dance or ceremonial music was needed), and more humane (International Federation for Human Rights and Union for Civil Liberty 2005:10). Three hundred years earlier, Gijsbert Heeck, a medical specialist working for the Dutch East India Company in what was then called Siam, observed several memorable execution methods. In interactions at the king's court, “The least sign of disobedience caused the guilty to be thrown alive in front of elephants to be torn to pieces, or beaten almost to a mash,” and even a glance at the ruler's face could result in immediate decapitation (Terwiel 2008). For lesser offenses, a favorite response was to smear the dishes and drinking bowls of the accused with buffalo dung, “forcing them to eat and drink from these until they were either killed or acquitted” (Richie 2008).

(10.) In 2001–2003, the king received a total of 123 petitions for individual pardon and rejected only 26. We thank Parichart Munsgool for her help in locating these and other data presented in this appendix.

(11.) In recent years, some drug offenders have apparently been considered “unqualified” for royal pardon, though we do not have disaggregated data that would enable us to determine what effect, if any, this change has had on execution outcomes (International Federation for Human Rights and Union for Civil Liberty 2005:27).