Avudh Panananda
The Nation December 11, 2012 1:00 am
The Department of Special Investigation will on Thursday notify the pair of the criminal charges they face in connection with the 2010 political violence.
By next year the trial should be in full swing, although the outcome of the court battle is not the issue.
Courtroom drama is what the government wants. And throwing Abhisit and Suthep into the sacrificial pit is tantamount to a game specifically designed for the red shirts as spectators.
With two key Democrats being tried, the coalition leaders hope for leverage to keep the opposition at bay during the turbulent time when the Constitution is rewritten next year.
Despite the questionable legal merit of the bid to prosecute the two, the legal community is curiously quiet. Some observers see the prosecution as a price that must be paid to stop moves to try to involve the International Criminal Court.
The government is under intense pressure from the red shirts to consent to Thailand becoming a party to the ICC in the hope that it would conduct an inquiry into the 2010 bloodshed. Trying Abhisit and Suthep under Thai law is a timely way to appease the red shirts, as well as keeping the world court - which specialises in crimes against humanity, genocide and war crimes - out of local affairs.
Although the red shirts are roaring their approval for the upcoming trial, the legal endgame is far from clear.
While the Criminal Code has been enforced for more than a century, the country has never had a single precedent in prosecuting leaders linked to extrajudicial killings or other forms of legally justified deaths.
News reports use a layman's term of "murder" to refer to the alleged offence involving Abhisit and Suthep. But legally speaking, public prosecutors have invoked four criminal provisions to concoct an unprecedented indictment, which never existed before in the compilation of legal jargon.
Abhisit and Suthep will be charged with "conspiring to instigate others to kill with intent to achieve foreseen effect". This legal mumbo jumbo is based on Articles 59, 83, 84 and 288 of the Criminal Code.
Article 59 prescribes criminal liability for intentional offences to achieve foreseen effects.
Article 83 relates to principal figures in regard to an offence, while Article 84 gives a definition of an instigator.
Article 288 outlines the penalty for murder, which ranges up to capital punishment from 15-20 years in prison.
When the four provisions are read together, the meaning is that Abhisit and Suthep, as political overseers and instigators, may be held liable, as if they were the killers of taxi driver Phan Khamkong on May 14, 2010.
The case is linked to a judicial inquest. The Criminal Court ruled in September that Phan was shot dead by an unidentified soldier during an emergency situation at Rajprarop Road.
Because of a curfew, Phan had sought and received shelter at a condominium office. Later he ran out alone to look - as soldiers opened fire - at a suspicious van on the opposite side of the street. He came back to the office with a gunshot wound in the right arm and died of massive loss of blood.
There was no witness or physical evidence to confirm how or why he was shot at. Furthermore, the emergency law grants immunity to soldiers in the line of duty.
Law professors will have to wait eight to 10 years for the completion of a three-tier judicial review before concluding where the case will lead in terms of legal merit.
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