Darunee’s lese majeste appeal fails

The Appeals Court has upheld the 15-year lese majeste prison term for Darunee Charnchoensilpakul. Da Torpedo is being punished for comments deemed insulting of the king and queen in a political speech in 2008. She was a strong critic of the 2006 military coup.

It was the so-called People’s Alliance for Democracy and its supporters who originally brought media attention to her speech at an anti-coup rally, baying for Darunee’s incarceration on lese majeste charges. Repeatedly refused bail and dragged through secret trials and a series of appeals, the royalist courts have repeatedly made it clear that Darunee is to be punished. Readers can see the details of royal and royalist retribution here.

It is worth noting that the charges were laid – under huge political pressure – by the pro-Thaksin Shinawatra government led by the late Samak Sundaravej.

The Appeals Court ruled that her conviction and long sentence on three counts of lese majeste and agreed with prosecutors that her speech “expressed her malicious intent against Their Majesties the King and the Queen.” The prosecutors say that the speeches “led to misunderstanding and caused DAAD [UDD] demonstrators to hate Their Majesties…”. YouTube has four excerpts from one of her offending speeches, in Thai, with limited English titling. Search for “Da Torpedo” at YouTube and the speeches come up.

The Appeals Court judges reportedly “saw that Daranee’s behaviour had caused damage to the reputation of Their Majesties and she deserved to be punished to warn others not to follow her example.”

PPT has made this point several times in the past – Darunee’s case is important for the royals and royalists as an example. Of course, the things that she said are widely known and, today, are all over social media. Yet she was one of the first to use these items as parts of political speeches in the post-coup era and is thus punished many times over in sham trials and repeated violations of her constitutional and other legal rights.

Darunee is a political martyr for free expression and in establishing a debate on the political role of the monarchy. Her case was one of the first to gain media attention – albeit tepid – in the massive increase of lese majeste charges hurled at political opponents following the coup.

Regularizing restrictions on free speech

As many readers will know, the Asian Legal Resource Centre (ALRC) is a non-governmental organization with general consultative status at the U.N.’s Human Rights Council. It makes regular reports to the HRC on Thailand. Find PPT’s earlier posts on these reports here.

Below,we reproduce the latest report by the ALRC:

A written statement submitted by

THAILAND: The regularization of the crisis of freedom of expression

FOR IMMEDIATE RELEASE

May 22, 2013

ALRC-CWS-23-05-2013

Language(s): English only

HUMAN RIGHTS COUNCIL

Twenty-third session, Agenda Item 3, General Debate

1. The Asian Legal Resource Centre (ALRC) wishes to bring the regularization of the crisis of freedom of expression in Thailand to the attention of the Human Rights Council. This statement is the sixth on this topic that the ALRC has submitted to the Council since May 2011. During the seventeenth session of the Council in May 2011, the ALRC highlighted the rise in the legal and unofficial use of Article 112 of the Criminal Code and the 2007 Computer Crimes Act (CCA) to constrict freedom of expression and intimidate citizens critical of the monarchy (A/HRC/17/NGO/27). During the nineteenth session in February 2012, the ALRC detailed some of the threats faced both by those who have expressed critical views of the monarchy, both legal and extralegal, as well as those who have expressed concern about these threats (A/HRC/19/NGO/55). During the twentieth session in June 2012, the ALRC raised concerns about the weak evidentiary basis of convictions made under Article 112 and the CCA (A/HRC/20/NGO/37) and the concerning conditions surrounding the death in prison custody of Amphon Tangnoppakul on 8 May 2012, then serving a 20-year sentence for four alleged violations of Article 112 and the CCA (A/HRC/20/NGO/38). During the twenty-second session in March 2013, the ALRC highlighted the January 2013 conviction under Article 112 of human rights defender and labour rights activist Somyot Prueksakasemsuk (A/HRC/22/NGO/44).

2. In the prior five statements, the ALRC has been concerned with the urgency of the threats posed by the constriction of freedom of expression. Particularly in the context of the 19 September 2006 coup and the violent clashes between state security forces and citizens in April-May 2010, the protection of fundamental human rights is necessary to foster the rule of law and democratization. The ALRC is again raising the issue of freedom of expression with the Council because the constriction of speech in the name of protecting the monarchy and national security has now become regularized. This is no longer an unusual breach of human rights, but one that has become constitutive of political and social life in Thailand. The entrenchment of the violation of freedom of expression threatens to normalize an additional series of human rights violations, such as the routine denial of bail to individuals awaiting trial and appeal, the provision of substandard medical care in prisons, and the use of secrecy to restrict the openness of trials and public information about ongoing cases.

3. Article 112 criminalizes criticism of the monarchy and mandates that, “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.” The 2007 CCA, which was promulgated as part of Thailand’s compliance as a signatory to the United Nations Convention Against Transnational Organized Crime, has been used to target web editors and websites identified as critical of the monarchy or dissident in other ways. The CCA provides for penalties of up to five years per count in cases which are judged to have involved the dissemination or hosting of information deemed threatening to national security, of which the institution of the monarchy is identified as a key part. While Article 112 law has been part of the Criminal Code since the last major revision in 1957, available statistics suggest that there has been a dramatic increase in the number of complaints filed since the 19 September 2006 coup; how often these complaints become formal charges and lead to prosecutions is information that the Government of Thailand has failed to provide up to this point. The CCA has often been used in combination with Article 112 in the four years since its promulgation; similar to the use of Article 112, complete usage information has not been made available by the Government of Thailand. This failure to provide information itself raises many unanswered questions about the use of both laws to diminish space for freedom of expression through the use of secrecy and creation of uncertainty.

4. At present, there are 6 persons known to be serving prison terms for alleged violations of Article 112 and/or the CCA and 1 person behind bars while awaiting trial.

a. Daranee Charnchoengsilpakul was convicted of violations of Article 112 related to 55 minutes of speech and sentenced to 18 years in prison on 28 August 2009. Following examination of her case by the Constitutional Court, her sentenced was reduced to 15 years in December 2011.

b. Wanchai Sae Tan was convicted of violations of Article 112 related to leaflets he made and distributed and sentenced to 15 years in prison on 26 February 2010.

c. Thanthawut Taweewarodomkul was convicted of violations of Article 112 and the CCA related to his work maintaining the NorPorChorUSA website and sentenced to 13 years in prison on 15 March 2011.

d. Surachai Sae Dan (Danwattananusorn) was convicted of a series of violations of Article 112 related to political speeches he made and sentenced to a total of 12.5 years in prison in a series of cases in 2012.

e. Somyot Prueksakasemsuk was convicted of violations of Article 112 related to his work in editing and publishing Voice of Taksin magazine, which was deemed to include two anti-monarchy articles (written by someone else) and sentenced to a total of 11 years in prison on 23 January 2013 (10 years on Article 112-related charges and 1 year related to a prior case).

f. Ekachai Hongkangwan was convicted of violations of Article 112 related to selling VCDs of an ABC Australia documentary and copies of WikiLeaks material and sentenced to 3 years and 4 months in prison on 28 March 2013.

g. Yutthapoom (last name withheld) has been held in the Bangkok Remand Prison since 19 September 2012 on charges of violating Article 112.

5. While there have been several other convictions in recent years, these 7 cases stand out because the individuals involved have repeatedly been denied bail, always on the grounds that their crimes are too grave a threat to national security to permit even temporary release. Although some individuals were granted bail while awaiting trial, upon conviction they were all denied bail, despite ongoing processes of appeal. This is in contravention to Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a state party, which specifies: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. 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, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.” Bail is routinely granted during trials and after conviction while awaiting appeal in cases of committing violent crimes in Thailand, but routinely denied for cases involving freedom of speech.

6. As highlighted by the May 2012 death in custody of Amphon Tangnoppakul, who was then serving a 20-year sentence for allegedly sending 4 anti-monarchy SMS messages, which the ALRC commented on in a June 2012 submission to the Council (A/HRC/20/NGO/38), the prison healthcare system in Thailand falls well beneath the United Nations Standard Minimum Rules for the Treatment of Prisoners. As part of the testimony provided during the April 2013 postmortem inquest hearings into Amphon’s death in custody, as reported by Prachatai, Amphon reported to fellow prisoners that when he went to seek treatment at the prison hospital, physicians made contemptuous comments about his alleged defamation of the monarchy. This goes far beyond institutional failure to meet minimum standards and indicates that physicians have become partial and may not provide an equal level of care to all prisoners.

7. Prosecutions under Article 112 and the CCA are surrounded by several different kinds of secrecy. The first is that the total number of charges and prosecutions under these two measures has not been made public by the Government of Thailand. The reason that the ALRC noted above in the list of current prisoners above that these are the known cases of individuals currently serving prison sentences or under detention while awaiting trial is that in the annual U.S. State Department Human Rights Report on Thailand, released in late April 2013, they reported that the number of persons detained or imprisoned under laws related to lèse majesté was between 7 and 18. Those 7 individuals listed above are those who are known to be behind bars, but the U.S. State Department report indicates there may be an additional 11 individuals being held. The failure of the Government of Thailand to provide precise information to the public itself raises many unanswered questions about the use of the laws to diminish space for freedom of expression through the use of secrecy. In addition, in at least two cases, those of Daranee Charnchoengsilpakul and Wanchai Sae Tan, the trials were held in camera and were closed to the public on the basis that the dissemination of the testimony may constitute a threat to national security. In a 2011 comment, the Constitutional Court argued that there was no contradiction between a secret trial and the protection of rights and liberties as provided for in the 2007 Constitution. Taken together, these two forms of secrecy create uncertainty about what consequences citizens may face for the basic exercise of human rights and makes political participation filled with possible danger.

8. The ALRC is very concerned about the effects of the regularization of the constriction of freedom of expression on human rights, democracy, and the rule of law in Thailand. The danger of this regularization is that it naturalizes violations of rights and causes them to appear normal and justified. The ALRC would like to remind the Government of Thailand that under Article 19 of the ICCPR, restrictions on the right to freedom of expression are only permissible under two circumstances: “for respect of the rights or reputations of others” and “for the protection of national security or of public order (ordre public), or of public health or morals.” While measure 112 is classified as a crime against national security within the Criminal Code of Thailand, and this is frequently cited by the Government of Thailand when faced with the criticism that the measure is in tension with the ICCPR, to date a clear explanation of the precise logic for categorizing the measure as such has not been provided. Without an adequate explanation being provided, the constriction of freedom of expression is arbitrary.

9. In view of the above, the Asian Legal Resource Center calls on the UN Human Rights Council to:

a. Call on the Government of Thailand to release all those convicted or facing charges under Article 112 and the 2007 Computer Crimes Act.

b. Demand that the Government of Thailand revoke Article 112 of the Criminal Code and the 2007 Computer Crimes Act.

c. Demand that the Government of Thailand provide an accounting of how they will improve the provisions for healthcare in prison and ensure that all prisoners receive the same treatment, without regard for the alleged crimes that they have committed.

d. Urge the Government of Thailand to allow and support the full exercise of freedom of expression and political freedom, consistent with the terms of the Universal Declaration of Human Rights, to which it is a signatory, and the International Covenant on Civil and Political Rights, to which it is a state party.

e. Request the Special Rapporteur on the freedom of opinion and expression to continue ongoing monitoring and research about the brought situation of constriction of rights and individual cases in Thailand; and, the Working Group on Arbitrary Detention to continue to monitor and report on those cases of persons arbitrarily detained under Article 112.

Royal non-appearance

As PPT posted yesterday, the  Bangkok Post proclaimed that both the king and the queen will “appear at a ceremony to commemorate Coronation Day in the Amarin Winichai Throne Hall Sunday, according to an announcement by the Royal Household Bureau.” We noted that the appearances were significant as the king has again been ill and the queen has been hidden since her stroke in July 2012.

Now the Bangkok Post has not one but three slightly different stories at its online site about the non-appearance of the king and queen. One story is here, another here and the third notes that: “Previously, the bureau said Their Majesties the King and Queen would appear at the ceremony.”

Prince Vajiralongkorn took over the Coronation Day event meant to mark the king’s coronation 63 years ago, following the death of his elder brother.

According to the Royal Household Bureau, “a team of royal physicians has advised His Majesty the King, 85, to suspend all royal activities…” due to continuing “inflammation in the lungs,” tiredness and an inability to “take much food…”. At The Nation it is stated that the king continues to receive “intravenous antibiotic medicine…”.

Of course, these things should have been known 24 hours earlier when the first announcement was made, so more rumors will swirl.

The queen’s failure to appear is left unexplained.

Royal appearances

A very short report at the Bangkok Post proclaims that both the king and the queen will “appear at a ceremony to commemorate Coronation Day in the Amarin Winichai Throne Hall Sunday, according to an announcement by the Royal Household Bureau.”

Given that the king has again been ill and seldom ventures from his suite at Siriraj Hospital, this event will garner plenty of attention. He’s been there since 19 September 2009.

The queen’s “appearance” is likely to get even more attention as she has been hidden since her stroke in July 2012 and rumors have swirled about her condition. These rumors are largely driven by the opaque reporting of royal health by the Royal Household Bureau.

Conspiratorial social media will likely reflect on yet another royal event when political temperatures are rising.

 

Army propagandizes for the queen

PPT ran across an Army press release, dated 10 April, that we wanted to share with our readers, with all of its idiosyncratic language and misspellings, as well as its propagandist intent. We wonder if this propaganda tract is announcing that the queen may actually be seen again soon, having dropped from public view since her stroke first mentioned by the media on 21 July 2012.

It begins:

Their Royal Highnesses King Rama IX and Queen Sinkrit are the longest-running monarchs in Thailand’s history. For her part, Her Majesty the Queen has long been associated with a various amount of charitable acts since essentially the beginning of her reign, having not only spearheaded initiatives like the Royally Initiated Natural Resources Rehabilitation projects, but countless other charitable acts that have cementer her legacy as one of the most well-loved monarchs in the modern world.

It is odd that the spelling of the queen’s name is garbled and that the king’s name isn’t mentioned.The emphasis on charity is a royal mantra, and is explained in Paul Handley’s excellent book as part of building massive merit for the royal family using the resources from the state and particularly from the royal pandering of Sino-Thai tycoons.

The Army gloss uses all the alleged charity work as reason to declare the queen “a true national treasure.” She also controls much of the nation’s treasure.

Readers can try to make something out of this claim:

Over the course of the last decade, Her Majesty the Queen’s role as the primary emissary of goodwill in our country has been especially prominent, though unfortunately due to the onset of two extreme natural disasters during that time period.

Her promotion of “goodwill” is explained in Wikileaks cables, where she is portrayed as a rabid nationalist. Perhaps this is why the Army lauds her support:

Over the last six decades, Her Majesty the Queen has graced the military with her moral support and physical presence during many of the more trying times our country has seen, adding a moral weight devoid of politics to the struggles our military has faced against some of the most lawless terrorists we have ever seen. She’s steadfastly stood with us as the moral center of a sometimes complicated and messy world, adding light and strength at every turn.

PPT isn’t going to contradict this statement of fact. We would add that she has been a steadfast ally of other rabid nationalists and royalists, seen in her public support for anti-democratic movements, including the People’s Alliance for Democracy and the killers of 1976, including Navapol and other reactionary groups. These events make a nonsense of the quite silly claim that:

… she’s been able to use her position to rise above these national disagreements, never sullying her image with scandal or controversy.

The final claim in this blathering about the queen is truly confused:

It’s not easy to be royalty in this country, even though it could easily be if she so chose. A lesser woman would rather busy herself with social gatherings than actually engage in the welfare of her people.Thankfully for the people of Thailand, Her Majesty the Queen is not only a good monarch, but a vertiable saint of our time.

More on Akechai’s lese majeste conviction

Prachatai has a longer report on the court’s decision to send Akechai Hongkangwarn to jail for lese majeste.

Akechai was sentenced to five years in prison (reduced for “cooperation”) and a fine of 100,000 baht for selling documentary CDs of an Australian Broadcasting Corporation documentary program on the monarchy and for having copies of Wikileaks documents that the court deemed were defaming to the queen and the crown prince.

Details of the “Foreign Correspondent” documentary and a link to the now well-known birthday party video are here. The Wikileaks cables are from 2008, indicating “the Queen supported the 2006 coup” and from 2010 about “opinions about royal succession from Privy Council Chair Gen Prem Tinsulanonda, Privy Council member ACM Siddhi Savetsila, and former Prime Minister Anand Panyarachun.” These can be found here, here and here. The court essentially refused to allow any of these big shots to be called to give evidence.

The report states that the judges “deemed the content of the materials misleading and defamatory for the monarchy.” It is a royalist fabrication that the materials are misleading. In fact, they use material directly from the palace and from the mouths of royalist flunkies to paint an accurate picture of the monarchy. That these insider accounts may be defamatory says more about the palace than of anything else.

But the propaganda-defending courts noted that:

The country’s constitution and criminal code stipulated that His Majesty the King is the head of state and highly revered. No one shall violate or use rights and liberties for any adverse effects. The state and its people have duties to uphold the monarchy system forever….  Any defaming speech causing irritation to … His Majesty shall not be acceptable,” the judge read out the verdict.

As usual, the royalist courts manipulate the constitution’s words in order to lock up someone considered guilty of telling the truth. Akechai is reported as being “upset by the court’s decision as his intention was merely to spread neutral and objective information produced by foreign media outlet to the public.” The court’s ruling is a reminder that truth shall not be spoken.

Sulak Sivaraksa commented that “the punishment for lese majeste is too severe. The monarchy should also be for open for criticism as it is important for democracy…”.

AHRC on Somyos

The Asian Human Right Commission has issued this press release on the upcoming lese majeste verdict in the case against Somyos Prueksakasemsuk. PPT reproduces it in full:

PRESS RELEASE

AHRC-PRL-003-2013

THAILAND: Arbitrary detention of a human rights defender and continued removal of constitutional protections

Hong Kong, January 22, 2013

On December 19, 2012, the Criminal Court in Bangkok was scheduled to deliver the verdict in the case of Somyot Prueksakasemsuk, who has been charged under Article 112 of the Criminal Code.  The reading of the decision was rescheduled for tomorrow, Wednesday, January 23, 2013, at 9 am at the Criminal Court in Bangkok. The Asian Human Rights Commission urges all individuals concerned with freedom of expression, and human rights broadly, to attend the reading of the verdict if possible, and if not, to follow developments in this case closely.

Somyot Prueksakasemsuk is a long-time labour rights activist and human rights defender in Thailand. Since 2007, he has been the editor of Voice of Taksin magazine. He was arrested and taken into custody on April 30, 2011, and shortly thereafter charged with two violations of Article 112 of the Criminal Code, which states that “Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.”  In Somyot’s case, the charges were for allegedly allowing two articles with anti-monarchy content to be published in Voice of Taksin magazine.  Somyot was held for six months of pre-trial detention; the hearings in his trial began on November 12, 2011 and continued until May 3, 2012.  Similar to the majority of individuals who have been charged under Article 112, his repeated requests for bail were denied on the basis of the gravity of the charges against him.  In August 2012, the UN Working Group on Arbitrary Detention noted that Somyot’s detention was arbitrary because “he has been detained for his peaceful exercise of his right to freedom of opinion and expression provided for” in both the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights (Read the full opinion of the Working Group here).

The reason given by the Criminal Court for the deferral of the reading of the decision on December 19, 2012, and therefore the extension of Somyot Prueksakasemsuk’s arbitrary detention, was the need to read a comment by the Constitutional Court in relation to Article 112 of the Criminal Code. The comment, dated October 2012, addressed a petition submitted by Somyot as well as a petition submitted by Ekachai Hongkangwan, who is being prosecuted in a separate case for alleged violations of Article 112. The comment addressed whether or not Article 112 was in contravention to Article 3 (2), Article 29, and Article 45 (1, 2) of the Constitution (The full comment can be read in Thai here).  In response to concerns about each of these provisions of the Constitution, the Constitutional Court ruled that Article 112 did not stand in contravention and was therefore constitutional.

The Asian Human Rights Commission is gravely concerned by the stance taken by the Constitutional Court in their comment and their cavalier dismissal of the significant concerns presented. With regard to each of the three articles of the Constitution raised as contravened by Article 112 of the Criminal Code, the Court’s explanation is at best, vague, and at worst, ideological. What makes this comment significant is both the potential impact it may have on the judgment rendered in Somyot Prueksakasemsuk’s case, as well as other lese majeste cases and the broad frame of freedom of expression and human rights in Thailand.

The Constitutional Court frames their comment by citing Articles 2 and 8 of the Constitution. Article 2 states that “Thailand adopts a democratic form of government with the King as Head of the State.” Article 8 states that “The King shall be enthroned in a position of revered worship and shall not be violated.  No person shall expose the King to any sort of accusation or action.” The Court then notes that Thailand has had a king as head of state “for a long time, since the Sukhothai era, even though there was a transformation in 1932 to be a democratic regime with the king as head of the state under a constitution.” The Court continues, noting that “Up until the current constitution of the kingdom, the form of regime remains one with the king as head of the state.” The Court then comments on what this means, offering the interpretation that “This demonstrates the great respect, esteem, and admiration held by the people for the institution of the monarchy. The place of the Thai king as the respected and beloved center of the Thai people has been continuous, as shown in age-old royal traditions and legal conventions. The king has administered with virtue and taken action with the intention of the well-being of the people. In particular, King Bhumipol Adulyadej, the current monarch, greatly contributes to the nation and gives royal grace to the Thai people. He visits the people and bestows royally-conceived projects in different areas in order to alleviate the suffering and solve the problems and troubles of the people. He teaches the people to subsist in line with the principles of the sufficiency economy, by living in line with the middle way, having enough, and being prepared to face changes which may arise. Ordinary people are aware of the king’s conduct and his generosity. They therefore have deep-seated respect, trust, and loyalty for the king and the institution of the monarchy. The long-standing patronage of the Thai king has made the Thai people to continually respect, love, and admire the king. This is a unique characteristic of Thailand held by no other country.” For this reason, the Constitutional Court explains that the state provides protection because the king is the head of state and a primary institution of the country.  The Court then notes that Article 112 of the Criminal Code is a complimentary provision to Article 8 of the Constitution.

In addition, the Constitutional Court also frames the comment by noting that the purpose of Article 112 of the Criminal Code is to “control the behavior of individuals in society, protect safety, and safeguard public peace for members of society, including strengthening the security in society.”  The reason why it is appropriate to do so is because speech deemed to insult, defame, or threaten the king, queen, heir-apparent or regent, “may be action that destroys the hearts of Thai people who have respect, love, and are loyal to the king and the institution of the monarchy, and may cause resentment among the people.”

After this introduction, which foreshadows the Constitutional Court’s dismissal of the two petitions at hand, and any future petitions, the Court turns to specifically address Article 112 of the Criminal Code in relation to Article 3 (2), Article 29, and Article 45 (1, 2) of the Constitution.

Article 3 (2) of the Constitution states that “The National Assembly, the Council of Ministers, the Courts, other Constitutional organizations and State agencies shall perform duties of office by the rule of law.” The petition noted that the classification of Article 112 of the Criminal Code as a crime of national security, and the corresponding harsh punishment, was not in line with the rule of law. In response, the Constitutional Court notes that Thailand is a democratic regime with the king as head of state. The Court further argues that the monarchy is in a special position, and therefore a special law is just because the monarchy is a primary pillar of the nation, owing to history, royal tradition, and legal convention. Rather than addressing the question of national security, and how an alleged violation of Article 112 of the Criminal Code might affect it, the Constitutional Court instead attempts to redefine the rule of law to include special protection for particular individuals within the polity. i.e., the king, queen, heir-apparent, and regent.

The Constitutional Court examined Article 29 and Article 45 (1, 2) together. Article 29 is in the section of the Constitution which addresses rights, liberties, and human dignity in a broad sense, and states that “(1) The restriction of such rights and liberties as recognized by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and only to the extent of necessity and provided that it shall not affect the essential substance of such rights and liberties. (2) The law under paragraph one shall be of general application and shall not be intended to apply to any particular case or person provided that the provision of the Constitution authorizing its enactment shall also be mentioned therein. (3) The provisions of paragraph one and paragraph two shall apply mutatis mutandis to rules or regulations issued by virtue of the provisions of the law.” Article 45  states “(1) A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicize, and make expression by other means. (2) The restriction on liberty under paragraph one shall not be imposed except by virtue of the provisions of law specifically enacted for the purpose of maintaining the security of the State, safeguarding the rights, liberties, dignity, reputation, family or privacy rights of other persons, maintaining public order or good morals of preventing the deterioration of the mind or health of the public.” In response, the Constitutional Court argues that Article 112 of the Criminal Code does not have any effects on freedom of expression. The Court further notes that freedom of expression must be in line with the Constitution, and speech which defames, insults, or threatens the king, queen, heir-apparent or regent is not, and so Article 112 of the Criminal Code does not limit freedom of expression.

The Asian Human Rights Commission wishes to note one line in the Constitution not mentioned by the Court in their comment. The first sentence of Article 3 notes that “The Sovereign power belongs to the Thai people.” Throughout this comment, rather than specifying how the Constitution might be used to uphold the rights and liberties of the people, the Constitutional Court has instead specified the conditions under which the people do not have rights, or recourse to demand their rights.  Combined with a comment issued in 2011 in response to a petition filed by Daranee Charnchoengsilpakul (See AHRC-FAT-038-2011), the Constitutional Court seems to have taken up the task of systematically stripping rights and liberties out of the Constitution.

The Asian Human Rights Commission is concerned about what this comment may mean for the specific case of Somyot Prueksakasemsuk, who faces a maximum sentence of up to 30 years if convicted, as well as what it means broadly. The AHRC urges all concerned parties to observe the Criminal Court decision in the case of Somyot Prueksakasemsuk tomorrow and to closely follow related developments in other cases and Thai state actions and comments in relations to Article 112 of the Criminal Code.

Ampol inquest

The Bangkok Post reports that the Criminal Court has begun “an inquest into the death of lese majeste convict Ampon Tangnoppakul.” As most readers will know, in one of the most political of lese majeste cases, Ampol was accused and then convicted of insulting the queen in series of SMS messages. Ridiculously sentenced to 20 years in a farcical court case that failed to prove Ampol had sent any messages, he perished while in jail.

The report states that the “inquest is in response to a petition from Ampon’s wife, Rosmalin Tangnoppakul, who claimed her husband died under suspicious circumstances.”

A senior nurse “admitted the prison hospital was not properly equipped to treat cancer patients” and “confirmed no doctors were present when Ampon died about 9.10am.” Why were no doctors attending?

Dr Kittibun Techaporn-anan, 39, the resident doctor, said he was with the hospital director when Ampon died.

He said a ward nurse had contacted him to say Ampon’s heart had stopped and they were trying to revive him.

He could not attend to help because he had been instructed by the hospital director to welcome the director-general of the Corrections Department, who was visiting the prison.

The life of a lese majeste convict was clearly inferior to a visit by a big shot.

“Bizarre, slightly surreal, and somewhat Kafkaesque”

Lennox Samuels at The Daily Beast has his take on the charging of former Prime Minister Abhisit Vejjajiva and his former deputy Suthep Thaugsuban. His essential position is the most common amongst the commentariat in Bangkok at present, yet there is much in the article that is worth considering.

It is at once bizarre, slightly surreal, and somewhat Kafkaesque: The most recent ex-prime minister of Thailand, Abhisit Vejjajiva, and one of his former deputy premiers, Suthep Thaugsuban, charged with the killing of a taxi driver during the political unrest that rocked the country more than two years ago. The charges were announced the day after the 85th birthday of the nation’s beloved King Bhumibol Adulyadej.

Part of the bizarre is the response from Abhisit, Suthep and the Democrat Party. Samuels talked to academic-for-hire and former Abhisit spokesman Panitan Wattanayagorn who sees the “charges as politically driven.” PPT wonders what he says about the “charges against 295 red shirts.” No, we don’t ponder this, for we know that Panitan deals in double standards and would dismiss these red shirts as “terrorists.” Panitan does make one good point: “It’s unprecedented to charge two top policymakers, including the former prime minister, like this.” That’s true and deserves to be applauded, not denigrated as when Panitan “likened the situation to charging President Obama with crimes in connection with his lawful execution of his role as commander-in-chief.” Of course, in Thailand, the king is commander-in-chief, so the comparison is flawed.* Other Democrat Party members, like The Economist, argue that the driving force behind the charges revolve around Thaksin: “Thaksin wants to come home and he’s getting desperate as his surrogates in government gain their own power and become more independent…”.

Samuels recalls Thailand’s “long-running political tug-of-war … marked by coups, deadly protests, and the ouster of prime ministers for absurdist reasons like hosting a cooking show on television. And inevitably, a bogeyman lurks in the background—or foreground, depending on who’s telling the story.” The bogeyman is not Privy Council president General Prem Tinsulanonda, the king, queen, old military duffers or someone in the military brass. Of course, it is “Thaksin Shinawatra, the populist billionaire premier ejected in a 2006 coup who has lived in comfortable exile ever since.”

We agree with Samuel that:

In essence, Thailand is divided between reformist democracy activists who want a more open process, and traditionalists who are content with the centuries-long structure dominated by elites that regard the one-man-one-vote ideal as at best premature. The elites, personified for many by Abhisit and the Democrats, have resisted “reconciliation” efforts, loath to agree to anything that would dilute the status quo.

We also agree with a diplomat cited by Samuel who declares that: “The fact is, Thaksin has been convicted of a conflict of interest,” the Western diplomat said. “Barely a misdemeanor. There are several prime ministers in the past who have committed far more egregious offenses. Frankly, it is unsustainable in the long run that the de facto prime minister be barred from his country.”

Abhisit takes a different view and in announcing his impending martyrdom, declares (at The Nation):

I hereby affirm that I will not negotiate for anybody’s interest. I insist that wrongdoers must be brought to justice and will fight the case based on facts. I will not join the process to absolve people who cheated the country. I’ll accept my fate even if the judicial process lands me in jail or gets me executed, but I will not whitewash the wrongdoings of cheaters….

Frankly, the martyrs are those protesters murdered by the state in 2010, and in 1973, 1976, 1992, at Kru Se and Tak Bai and(to mention just a few instances) where no one has been held accountable.

The problem the autocrats have is that Thaksin is electorally popular but, as Samuels explains, “the former premier is anathema to establishment Thais, who regard his populist rhetoric and policies as threats to the societal order…”. They fear and hate Thaksin so the concoct conspiracies that see anyone who is not on their side as a mortal enemy and where proposed constitutional amendments amount to “a process they allege would result in the entire political system being jettisoned, including the monarchy.” That is bizarre.

The outcome is described in the article this way:

In the short term, the political gridlock is likely to continue, as neither side has the leverage to effect change—or the will to compromise. “A lot of people are in a prolonged conflict,” said one prominent political figure. “There’s more and more hatred and anger, and things get more complicated. So it is not possible for them to say, all of a sudden, we want to reconcile.” He added that both sides are “about even,” with Red Shirts having the government on their side while the Yellow Shirts can claim the military, judiciary, and “people in the palace.” … “Reconciliation basically has a better chance when one side dominates,” he said. If so, Thailand’s in for a long slog.

Interestingly, the government also has the majority of the people on its side, but then the autocrats simply can’t accept elections or their results (unless they were to somehow conjure a win). This is one reason why Abhisit always speaks of the rule of law and seldom about issues of democracy.

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*While there are U.S. politicians who should be held responsible for atrocious acts internationally – think drones and Indochina bombing – we can’t think of a case of post-Civil War mass state killings in the U.S. that haven’t gone to the courts. The Kent State killings come to mind as a case that did go to courts, but maybe readers can remind us of others as we know little about U.S. history.

Lese majeste updates

Prachatai has published some useful updates on a series of lese majeste cases. PPT will summarize here and will update our specific pages on each case as well:

1. In its first story, Prachatai refers to the truly bizarre case of two of the Royal Health Rumor 4. Back in October 2009 there were rumors that the king was seriously ill or had died. This caused a huge sell-off on the stock exchange, and the ridiculous Abhisit Vejjajiva-led coalition government began a witch hunt for those responsible for the rumors. Many observers considered the whole case so silly that it had been quietly brushed under the carpet. Not so. The Criminal Court is said to be “likely to deliver its ruling by the end of this year on a case” involving Katha Pajajiriyapong, then an employee in the trading a securities trading firm KT Zmico Securities (the firm sacked him). Katha is said to have posted comments on Same Sky or Fah Diew Kan web board. Apparently there is another charge against him from April 2009. He is charged under the 2007 Computer-Related Crimes Act. He has been on bail since his arrest in 1 November 2009. He is expected to get a verdict on 19 December 2012.
2. Also one of the Royal Health Rumor 4, Thiranan Vipuchanun, a former director of a finance and securities trading firm, is “accused of posting on the Prachatai webboard her translation of a Bloomberg news article which reported the slump of the Thai stock market on 14 Aug 2009 due to the widespread rumours about the King’s health. Her case is now pending a decision by the prosecution.”
3. Somyos Prueksakasemsuk is also scheduled to re-appear in court on 19 December 2012, and it seems that he may get a verdict then, having been held in prison since 30 April 2011 on lese majeste charges.
4. Akechai Hongkangwarn who was arrested on 11 March 2011 and charged under Article 112 – lese majeste – for being in possession of illegal VCDs of an Australian television documentary that presented an accurate picture of the state of the Thai monarchy and 10 Wikileaks documents. He is expected to appear in court on 22 February 2013.
5. One of the Bangkok 19 who were accused by the Army and its boss General Prayuth Chan-ocha, Yoswaris Chuklom or Jeng Dokchik, “a comedian turned red-shirt activist and politician, will appear in court for witness hearings on 11-12 Dec [2012]. He is being prosecuted for alleged lèse majesté comments in his public speech during a red-shirt rally at Phan Fa on 29 March 2010.”
6. In the first week of November 2010, Sqn Ldr Chanin Khlaikhlung became the first casualty of then Defense Minister Prawit Wongsuwan’s warning that the military needed to weed out anti-monarchists in its ranks. This was also a part of the Abhisit regime’s royalist witch hunt. He will likely appear in a military court (closed to the public) in February 2013, facing lese majeste and computer crimes charges related to 24 comments on his Facebook page.
7. Finally, Prachatai mentions a case PPT has not previously heard of when it lists Aswin (family name withheld) as likely to appear in Chiang Mai Court in February 2013 “to face accusations by an acquaintance of making lèse majesté remarks.”
8. In its second story, Prachatai mentions another case previously unknown to PPT. The case goes back to the days of high alert on lese majeste by the royalist regime under Abhisit and refers to an unnamed Malay Muslim man whose case is outlined at the iLaw database. The Pattani resident is accused of “hanging banners with the picture of HM the Queen on a pedestrian bridge in the town” also allegedly “containing messages about violent incidents in the south and other parts of Thailand, together with a picture of HM the Queen, on 12 Aug 2009, the Queen’s birthday…”. It seems that this may be another case pursued by the military who are also accused of beating and torturing the man to get a confession on a crime he was not even aware of (standard military practice). He has been on bail. It seems this case has been kept secret.
9. A third story refers to well-known Thammasat historian Somsak Jeamteerasakul who is said to be “pessimistic” and “both surprised and appalled by the decision of police to forward his lese majeste police complaint case to the Office of the Attorney General (OAG).” He is due to appear before the prosecutor sometime this month.

The last story also refers to there being “currently at least seven people detained under the law with hundreds more in the process of possibly being charged or having received police complaints made against them.” PPT knows of eight currently detained, although we assume there are more we don’t know about. We are not aware that there are “hundreds more in the process of possibly being charged or having received police complaints made against them.” That said, there are two cases above we had never heard of before, suggesting that the case load and backlog that is inestimable. The opacity associated with this most political of charges lends itself to both under-reporting and exaggeration.

In late 2010, based on data related to charges laid, prosecuted and known conviction rates, we had guesstimated that there may have been some 350 jailed following lese majeste convictions or related computer crimes charges. We have no idea how many accusations there are or how many cases are winding there way through the system. In any serious judicial system, this law would be declared unconstitutional and scrapped. Until that happens, Thailand can never be a truly democratic country.