This essay appeared in the 2021 Fueling Discovery special section of the Wisconsin State Journal on 10/17/21. View the full 2021 Fueling Discovery PDF here.
About the author
Tyrell Haberkorn is Professor of Southeast Asian Studies in the Department of Asian Languages and Cultures. She researches state violence and human rights in Thailand and works to use knowledge to challenge injustice. Her most recent book is In Plain Sight: Impunity and Human Rights in Thailand (University of Wisconsin Press, 2018).
Judges and historians both construct narratives about who did what, when, and to what end. Historians often treat legal decisions as a source of evidence about state violence, as I do in my research. I may read a case file and then, in my scholarly narrative, offer a different interpretation of the series of events or a different conclusion than the one reached by the judges.
An alternative vision of justice may emerge from a rereading that lays bare a coverup in cases of state violence perpetrated against the people by vicious dictators, or even injustice perpetrated against the people by the court itself, either intentionally or by sleight of hand.
What if the historian stepped out of scholarly narrative and wrote in the voice of a judge and in the format of a decision? Past events or evidence in a decision might be ordered, or even constituted, differently. The evidence needed to hold state perpetrators to account could be brought to the fore, rather than suppressed (in order to exonerate bad actors). Instead of a critique, scholars could offer an alternative vision of justice —and highlight the gap between the law as practiced and law as ideal. I have decided to try this approach.
Inspired by feminist legal scholarship, I recently “picked up the judge’s pen” to write a condensed history of the five years of dictatorship under Thailand’s most recent coup regime, the National Council for Peace and Order (NCPO). The NCPO launched a coup on May 22, 2014, Thailand’s 13th since the end of absolute monarchy in 1932. The NCPO remained in power until July 10, 2019, when a new civilian cabinet was sworn in following elections.
The NCPO’s favorite tool of repression was the law, and hundreds of civilians were prosecuted in political cases for peaceful protest and for simply daring to think differently from those who held power. Anti-coup protests were swiftly shut down. Dissidents were summoned for interrogation and re-education. Activists were sentenced to lengthy prison terms. Law, rather than the extrajudicial violence favored by previous dictatorships, gave the NCPO’s repression a veneer of legitimacy. The junta responded to criticism by stating that they were merely enforcing the law.
Reimagining the meaning of the law in the aftermath of dictatorship is therefore part of moving towards democracy. I selected eight decisions in cases in which the law was used to suppress, rather than support, human rights, and am rewriting them to be more just. Vastly different outcomes are possible under the very same body of law.
Writing in the voice of a judge, and in the form of a decision, has been full of simultaneous discomfort, uncertainty and fun. The contest over law goes from being theoretical and hopeful, to being real and present on the page beneath my pen. As I struggle, sentence by sentence, to rewrite the judges’ decisions, I am learning that the legal decision is not merely a source of evidence for the history I write, but the very site in which to imagine the future anew.
