Thailand's Legitimacy Deficit

07/26/2010 05:58 am ET | Updated May 25, 2011

If next week the government of Iran or Venezuela were to dispatch its military to the streets to brutally suppress a protest rally, one would expect widespread political outrage expressed by Washington. However when it actually happens in Thailand, the "Country of Smiles" where about 90 mostly unarmed protesters were killed in April and May, the United States has instead decided to tread very lightly.

The U.S. policy toward Thailand is first and foremost an exercise in pragmatic preservation and avoidance of open disagreement. Given China's rising influence in the region, which according to some analysts has surged forward since the massacres, Washington finds itself obligated to show public support for a non-ideal and illegitimate leadership of a historic and important ally. However if we look closely and read between the lines, there appears to be a different reality behind closed doors and quickly expiring patience.

There are three factors that are creating pressure for a change in the U.S.-Thailand relationship: 1) The abuse of emergency powers, 2) a Potemkin reconciliation process, and 3) fundamental democratic illegitimacy. Without progress or improvement in one of these three areas, U.S. support for the Abhisit regime will be short-lived.

William J. Burns, an experienced and respected diplomat who currently serves as Under Secretary for Political Affairs at State Department, recently gave a speech at Chulalongkorn University that, for the most part, underscored Washington's dedication to good relations with the Thai people (which should be seen as wholly distinct from unconditional support for the current leadership). However, when asked about Thailand's decision to extend emergency powers for seemingly no reason, Burns revealed the other side of the coin:

I've made clear in private as we've made clear in public in the past the American view that the emergency decrees, in the self-interest of Thailand, ought to be lifted as soon as possible because the indefinite promulgation of those kind of decrees is not a healthy thing for any democratic system.

In this same speech, Burns also commented that the U.S. is calling for "genuine reconciliation and tolerance," which signals a recognition that the current plan proposed by Prime Minister Abhisit Vejjajiva leaves much to be desired (such as participation from the opposition).

The current effort by the grandly titled Truth and National Reconciliation Committee represents a bitter irony for persecuted members of the Red Shirt pro-democracy movement (the electoral majority), who are hunted day and night by an Orwellian state instrument known as the Centre for the Resolution of Emergency Situation (CRES) -- an unaccountable entity stuffed with appointees from the ruling party, and the key beneficiary of emergency powers.

All members of the committee have been appointed by the government without consultations with the victims. The chairman of the group, who although is well-respected, has already publicly stated that the conclusions will not lead to any blame or prosecutions, which falls well short of Thailand's obligations under the ICCPR. Concerns that the reconciliation process is deeply flawed have been expressed by a diverse number of organizations.

The demand for an independent, impartial tribunal to investigate the calculated destruction of the Red Shirt leadership should seem modest and appropriate as well as in keeping with the duty under international law of the Thai state. Keeping with the tradition of the fact that no member of the Thai army has ever served time for the massacres associated with the repressions of civilian unrest in 1973, 1976, 1992 or 2010, there appears total impunity with respect to the April and May political violence.

What needs to be made clear to U.S. policymakers is that Thailand suffers from a significant legitimacy deficit under the current leadership, which has come into power as the eventual result of a coup and the imposition of a flawed constitution drafted by the military junta -- not by the people. Prime Minister Abhisit Vejjajiva of the Democrat Party was only appointed by parliament after very suspicious Constitutional Court rulings banned representatives from the most popular party at the ballot box, effectively robbing Thai citizens of their votes. Now, those who have the courage to publicly complain about this unraveling of democracy face jail, intimidation, and in some cases, live ammunition.

It is set against this pervasive attack on the fundamentals of democracy that my law firm has recently released a white paper entitled "The Bangkok Massacres: A Call for Accountability." Its role is to systematically present the background of the Red Shirt movement and their demands for a thorough and important investigation of the violence and related political persecution.

The response by the government to the white paper has been disappointing and evasive. The Prime Minister has chosen not to offer any defense to the facts and evidence presented, but rather cast out groundless and slanderous personal attacks. Other government representatives have fallen back on more familiar reflexes: Because the document was prepared by a legal representative to former Prime Minister Thaksin Shinawatra (a fact we have made transparent at all times), they aren't required to uphold their obligations before international law. Allow me to state very clearly here that I am not an objective party and have never pretended to be -- we have been appointed to defend the rights of the victims of a violent repression. The debate is not about who says what, but rather whether or not the Thai authorities have violated the law in the violent crackdown, and whether they hold anyone accountable for the deaths of 90 civilians. Everything else is prevarication and distraction.

The Thai government's refusal to take these massacres seriously and enter into honest debate with the responsibility as a modern nation that it claims to be will grate upon its relations with the United States. The State Department already understands that it is possible to maintain good relations with the people of Thailand while simultaneously applying positive pressure upon its leadership. During a recent visit to Washington D.C., Noppadon Pattama, a former foreign minister and legal adviser to Thaksin, said "It would be helpful if the Obama administration urged the Thai government to open a political dialogue among all the competing parties so we can reach a real reconciliation. We think that would make Thailand a stronger ally to the United States."

Given the current strides toward impunity for the military taken by Thailand, the clock is now ticking over in Washington before the opportunity cost becomes clear and apparent. It's time to ask the Abhisit regime to immediately abolish the current state of emergency, guarantee the freedom of the press, uphold the independence of the judiciary, and call for a new general election as soon possible. A true ally should be able to make such reasonable requests in order to bolster long-term relations with the Thai people -- not just quick and easy deals with the unreliable current illegitimate regime.

Robert Amsterdam is an international lawyer retained by the former Prime Minister of Thailand Thaksin Shinawatra to advocate on behalf of the United Front for Democracy against Dictatorship (UDD)