At last, HRW on lese majeste and bail

25 02 2012

Yesterday, in commenting yet again on the repeated denial of bail for those accused and convicted of lese majeste, PPT observed:

the US Embassy, Amnesty International and Human Rights Watch say nothing. They have a sham interest in human rights in Thailand and stand on the side of those who abuse human rights. They should be ashamed as they are complicit in these ludicrous events.

For months, indeed years, we have been making the point that the denial of bail is a form of torture and a means to further punish lese majeste victims. We have also stated that the courts engage in behavior that is arguably unconstitutional.

We are now able to say that Human Rights Watch has finally said something useful on the non-use of bail as punishment. Here’s HRW’s statement, apparently released late on Friday:

Thai courts are refusing bail for people charged with the crime of lese majeste for apparently political reasons, Human Rights Watch said today. Thai law criminalizes the expression of peaceful opinions deemed offensive to the institution of the monarchy.

How come Sondhi gets bail?

In all 12 cases of lese majeste that the public prosecutor has filed against supporters of the United Front for Democracy against Dictatorship, known as the Red Shirts, since 2009, bail has been denied, Human Rights Watch said. By contrast, the leader of the pro-monarchy People’s Alliance for Democracy (PAD), Sondhi Limthongkul, was charged with lese majeste on July 5, 2010, and granted bail the same day.

“Bail appears to be systematically denied to members of the Red Shirts while they await trial for lese majeste,” said Brad Adams, Asia director at Human Rights Watch. “Denial of bail seems to be for punishment rather than for justified reasons.”

A verdict is expected on February 28, 2012, in the case of Surachai Danwattananusorn, a prominent political activist and leader of the Red Siam, a faction in the Red Shirt movement that has often expressed anti-monarchy opinions. He was arrested and charged with lese majeste in February 2011, and his bail application was denied five times. He said his health problems, including a heart condition, hypertension, and diabetes, and the repeated rejections of his bail applications are the main reasons he has decided to seek a quick end of his trial by pleading guilty.

Joe Gordon, an American citizen known to be a supporter of the Red Shirts, pleaded guilty to lese majeste charges and was sentenced in December 2011 to five years in prison. He told Human Rights Watch that he decided to plead guilty, hoping to have his penalty lessened, after being denied bail eight times since his arrest in May 2011. The sentence was later reduced by half and he is now preparing to ask for a royal pardon.

PPT needs to interject here: we are unsure why HRW makes the point that Joe is “known to be a supporter of the Red Shirts.” We have no evidence that Joe was a red shirt supporter when arrested. That said, the claim made of Joe could equally apply to millions throughout the country. HRW’s statement is questionable and politicized. HRW are also neglectful of the fact that Joe cannot apply for a pardon as his case is being appealed by the prosecutor. HRW appears to lack adequate information regarding lese majeste victims.

Somyot Preuksakasemsuk, a well-known labor activist and editor, was arrested on lese majeste charges on April 30, 2011 in connection with articles published in the now banned Voice of Taksin magazine, which supports the Red Shirts. He has been denied bail seven times since his arrest, most recently on February 20.

Human Rights Watch expressed concern that Thai authorities are using Somyot’s pre-trial detention to mistreat him. Somyot told Human Rights Watch that he had been transferred to attend witness hearings in Sa Kaeo, Petchabun, Nakorn Sawan, and Songkhla provinces, during which he had to stand up throughout the journeys in an overcrowded truck, with his ankles shackled and without access to toilet facilities, leading to the aggravation of his medical conditions, which include hypertension and gout.

Holding the witness hearings in the provinces may have been unnecessary because, as Human Rights Watch learned, a number of prosecution witnesses in Somyot’s case actually live and work in Bangkok despite having registered residences in the provinces. On September 12, the criminal court in Bangkok rejected Somyot’s request to hold hearings in Bangkok. The four provincial courts rejected a similar request. Holding numerous, and perhaps unnecessary, pre-trial hearings outside Bangkok – at least 10 more such hearings are scheduled before May – will mean that Somyot will have been in pre-trial detention for at least a year before his case goes to trial.

HRW might have added that his last appearance in Songkhla was cancelled when the single prosecution witness failed to show up, meaning the 24 hours of traveling was wholly unnecessary.

On February 11, Panitan Preuksakasemsuk, Somyot’s son, started a hunger strike in front of the criminal court to demand his father’s release on bail while he stands trial. The campaign has since been backed by the families of other lese majeste prisoners.

The International Covenant on Civil and Political Rights, which Thailand has ratified, states that, “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.” Those denied bail need to be tried as expeditiously as possible.

HRW could go further, as we stated several months ago. PPT considers the use of extended incarceration for lese majeste victims in order to force guilty pleas is a form of torture, as defined by the U.N.:

… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

That’s our quote from the U.N., but but back to HRW:

“The glaring injustices of the lese majeste cases are being made even worse by the denial of bail and long periods of pre-trial detention,” Adams said.

In response to recommendations by the Truth for Reconciliation Commission of Thailand, the Justice Ministry’s Rights and Liberties Protection Department has begun using its budget from the “Justice Fund” to guarantee bail applications of those being held on lese majeste charges, as well as supporters of the United Front for Democracy against Dictatorship facing various charges in connection with political protests in 2010. The commission’s chairperson, Kanit Na Nakhon, has also publicly called for judges to treat lese majeste offenders more leniently. In February, though, the courts have rejected the first three bail requests under this effort.

The House of Representatives’ Standing Committee on Law, Justice, and Human Rights began a hearing on February 22 to investigate the refusal of bail in lese majeste cases in which the defendants are believed to have connection with the Red Shirt movement.

“Freedom of expression is seriously under threat in Thailand because of harsh treatment and severe penalties being meted out for peaceful expression,” Adams said.

Since the September 2006 coup, Thai authorities have taken increasingly repressive actions against those perceived to have made criticisms of the institution of monarchy. In response to mass protests led by the Red Shirts in 2009 and 2010, the government of then-Prime Minister Abhisit Vejjajiva frequently used article 112 of the Penal Code and article 14 of the Computer-Related Crimes Act to intimidate, arrest, and prosecute activists, journalists, and academics, both Thai and foreign. Despite its promises to restore respect for human rights in Thailand, the new government of Prime Minister Yingluck Shinawatra, which took office in August 2011, has shown little interest in ending lese majeste crackdowns. On September 1, 2011, a computer programmer, Surapak Phuchaisaeng, was arrested in Bangkok for allegedly posting pictures, audio clips, and messages deemed insulting to the royal family on the social networking site Facebook.

While PPT has been critical of the Yingluck government on lese majeste, we think HRW is being misleading on this. Surapak’s case does have the dubious distinction of being the first lese majeste arrest under the Yingluck Shinawatra government. At the same time, the case began under the Abhisit  government.

In this sense, as far as we are able to tell, while the current government was strong on lese majeste rhetoric, the level of cases being investigated and charged appears to have declined. That could easily change, but at the moment, HRW’s claim about the new government does not appear to match the available facts.

HRW continues:

In his 2005 birthday speech, Thailand’s revered King Bhumibol Adulyadej himself stated that he was not above criticism. “Actually, I must also be criticized. I am not afraid if the criticism concerns what I do wrong, because then I know. Because if you say the King cannot be criticized, it means that the King is not human,” he said. “If the King can do no wrong, it is akin to looking down upon him because the King is not being treated as a human being. But the King can do wrong.”

This speech is usually cited by “liberal royalists” in recognizing that the post-2006 coup use of lese majeste has been highly politicized. Frankly, we think that these royalists and HRW have misunderstood the point of that speech, which was essentially an attack on then Prime Minister Thaksin Shinawatra.

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