UN, Thailand and lese majeste

12 06 2010

We thank a reader for bringing this report by the UN’s Special Rapporteur on the promotion and protection of the right to Freedom of Expression, Frank La Rue, to our attention. It is from the background report to the UN-issued annual report at the UN Human Rights Council. It is important, so we reprint it in full.

The Special Rapporteur submitted his Annual Report to the 14th Session of the Human Rights Council (31 May to 18 June).  The Annual Report makes public the communications he had with the Thai governments during the year and the replies he received.  This year’s report includes the communications on lese majeste.

Thailand (pp. 386-94)

Urgent appeal

2361. On 6 April 2009, the Special Rapporteur, together with the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, sent an urgent appeal regarding Mr. Suwicha Takor, 34 years old.

2362. According to the information received, on 3 April 2009, the Criminal Court in Bangkok sentenced Mr. Takor to 10 years of imprisonment for posting images on the Internet in 2008 that were allegedly offensive to members of the royal family, including His Majesty, King Rama IX, and the Crown Prince, Maha Vajiralongkorn. Mr. Takor was convicted of lèse-majesté pursuant to articles 8 and 9 of the 2007 Constitution, articles 33, 83, 91 and 112 of the Criminal Code, and also pursuant to articles 14 (2) and 16 (1) of 2007 Computer Related Crime Act for having illegally used a computer. The 2007 Computer Related Crime Act was introduced under the military rule of the country. Mr. Takor was convicted on two accounts carrying 10 years of imprisonment each. His sentence was reduced because he had pleaded guilty.

2363. The police arrested Mr. Takor on 14 January 2009 in his hometown Nakhon Phanom and he was transferred to Bangkok. He had been kept in prison since then, as the court twice refused his lawyer’s submissions for bail.

2364. The Minister of Justice had called for a blanket ban on reporting on cases of lèse-majesté in the Thai media and was also refusing to publish related statistics.

2365. Concern was expressed that the arrest, detention and imprisonment of Mr. Suwicha Takor might represent a direct attempt to stifle freedom of expression in Thailand.

Responses from the Government

2366. In a letter dated 30 April 2009, the Government responded to the communication and provided preliminary information on the lèse-majesté law, explaining that the lèse-majesté law is part of Thailand’s criminal code, which also contains general provisions on defamation and libel of private individuals.

2367. Under the Thai Criminal Procedure Code, a person who comes across a suspected lèse-majesté act may set in motion legal prosecution by lodging a formal complaint with the relevant authorities. Facts and evidence are gathered and investigated first by the police in order to establish the case, before it can be submitted and examined by the public prosecutor in accordance with due process of law. Only thereafter may the public prosecutor bring the case before the court. In the past, a large number of lèse-majesté charges have been dropped. For those found guilty, they have the right to appeal to higher courts. It is also common for those convicted to be subsequently granted royal pardons.

2368. Similar lèse-majesté laws exist in many countries with constitutional monarchies, including countries in Western Europe. Like such countries, Thai law provides that the King shall be held in a non-violable position and that the King shall be respected and no one shall accuse or file charges of any sort against him. This is in accordance with article 8 of the 2007 Thai Constitution.

2369. The rationale behind the law is to protect Thailand’s national security because under the Thai Constitution, the monarchy is one of Thailand’s principal institutions. The King and other members of the Royal Family are above politics. The Constitution does not allow them to comment or act in their own defence. This is the same rationale as the law on contempt of court.

2370. The King himself is not adverse to criticisms, having publicly expressed, in a nationwide address, his discomfort with the lèse-majesté law and his disagreement with the notion that “the King can do no wrong”. However, the King is not in a position to amend the law, which has the support of the general public.

2371. Thailand is committed to upholding the rights of all persons to freedom of opinion and expression as stipulated in the ICCPR and the 2007 Thai Constitution. The lèse-majesté law is not aimed at curbing these rights nor the legitimate exercise of academic freedom, including the debates concerning the monarchy as an institution, which have taken place in the past.

2372. In a letter dated 7 July 2009, the Government provided additional information regarding the case of Mr. Suwisha Thakor.

2373. Mr. Suwisha Thakor was arrested on 14 January 2009 under a warrant issued by the Criminal Court stating that, from 27 April to 26 December 2008, Mr. Suwisha Thakor had disseminated information and pictures allegedly offensive to His Majesty the King via the Internet. Mr. Takor denied all charges while the police filed the application to the court, requesting to detain Mr. Takor during investigation.

2374. On 26 March 2009, after having received the investigation file from the police, the Attorney-General issued an opinion to institute prosecutions against Mr. Takor on two counts: (1) defaming, insulting or threatening the King, the Queen, her Heir apparent or the Regent by importing to a computer system of false computer data in a manner that is likely to damage the country’s security and of computer dated related to an offence against the Kingdom’s security; and (2) importing to a computer system that is publicly accessible of computer data where a third party’s picture appears either created, edited, added or adapted by electronic means or otherwise in a manner that is likely to impair the third party’s reputation or cause that third party to be ostracized, abominated or embarrassed which are the offences pursuant to Articles 8 and 9 of the Constitution, Articles 33, 83, 91 and 112 of the Criminal Code and Articles 14(2) and 16(1) of the
Computer-Related Crime Act.

2375. During the detention, Mr. Takor’s wife filed an application with the Court requesting bail for Mr. Takor. The Court dismissed the application on the ground that the King is a highly respected institution in Thailand and is inviolable by law. This case involved a serious threat to national security which constitutes grave offence. There was also the possibility of absconding since Mr. Takor was employed by a foreign company which entailed regular travel. The Court, therefore, ruled that there was no reasonable ground to grant his temporary release.

2376. On 30 March 2009, Mr. Suwicha Thakor pleaded guilty to all charges and on 3 April 2009 he was sentenced to 20 years in prison on two counts of ten years each. Since he pleaded guilty, his sentence was reduced to 10 years.

2377. The arrest, prosecution and adjudication in the case of Mr. Suwicha Thakor were conducted in an independent, transparent and impartial manner in compliance with Thai laws and international human rights standards. The above information explicitly indicates that the arrest and detention of Mr. Takor was not arbitrary but was done under the rule of law. Of this there should be no doubt. Mr. Takor still has the right to appeal his sentence to higher court or request for a royal pardon which can be done under the Criminal Procedure Code and the Thai Constitution. It should be added that it is not uncommon for royal pardons to be granted in lèse-majesté cases in Thailand.

2378. With respect to freedom of expression, the Minister of Justice has never called for a blanket ban on reporting on cases of lèse-majesté in the Thai media. The case of Mr. Takor and other cases relating to lèse-majesté have been widely reported in the Thai newspapers, television and websites which are the reflection of media freedom granted by the Thai Constitution.

2379. In this connection, the Royal Thai Government would like to share its view regarding the lèse-majesté law and its implication to the freedom of expression as follows:

(1) In any democratic country, it is commonly recognized that the Head of the State has a status different from that of ordinary citizens, being not an individual but an institution and a representative of the State. The King of Thailand is no exception. Such a status has been reflected in the constitutions of several democratic nations, especially the constitutions of those monarchies which stipulate the monarch’s position as being revered or inviolable. Defamation against the monarch or the King is an offence and carries a penalty of a prison term of varying duration depending on the laws of each country.

(2) Thailand, as a democratic country, values equality and freedom, particularly the freedom of expression. However, it is universally recognized that freedom of expression has limits and comes with certain responsibilities, but that such limitations must be placed by law. This principle is enshrined in Article 29(2) of the Universal Declaration of Human Rights, Article 19(3) of the International Covenant on Civil and Political Rights, and Section 45 of the Constitution of the Kingdom of Thailand, B.E. 2550 (2007). As such, freedom of expression does not allow a person to verbally attack, insult or defame anyone, not to mention the Head of State.

(3) Many lèse-majesté cases in Thailand, including Mr. Takor’s case, do not involve only defamation but also incitement to hatred of the monarchy as well as the intention to generate misunderstanding among the public on the role of the King who is above conflicts and politics. This is the prime reason why a lèse-majesté case in Thailand is regarded as a threat to national security as well as a serious criminal offence.

(4) The monarch constitutes not only the most revered institution of the Thai people but also one of Thailand’s principal institutions that has upheld the nation’s stability and security throughout its entire history. The King has tirelessly devoted himself to alleviating the plight of the Thai people and to their well-being throughout his reign. He is very much revered and regarded as a “father” to all Thais who are highly protective towards him. This explains why the Thai people have low tolerance for those who violate lèse-majesté law. The provisions of the Thai Constitution and Criminal Code regarding lèse-majesté are the product of the will of the majority of Thai people to protect the institution they revere from harm. Lèse-majesté is regarded as not just harmful to the person insulted but to Thai society, ethics and culture as a whole.

(5) In conclusion, lèse-majesté law in Thailand is not aimed at restricting the legitimate right to freedom of expression. It is important to note that a number of lese majeste cases have not been prosecuted and some have been dropped in the Court. In some cases, the Court ruled that there was no intent to defame the King. It is “intent” that the Court uses as the basis for deliberations on lèse-majesté cases.

Urgent appeal

2380. On 31 July 2009, the Special Rapporteur, together with the Chairperson- Rapporteur of the Working Group on Arbitrary Detention and the Special Rapporteur on the situation of human rights defenders, sent an urgent appeal regarding ongoing criminal investigations and charges being brought against individuals on the basis of the lèse majesté provisions of the Thai Criminal Code, namely Mr. Jitsanu Promsorn, Ms Chronic [Chiranuch] Premchaiporn, Ms Boonyuen Prasertying, and Ms Daranee Charnchoengsilpakul.

2381. A number of cases concerning lèse majesté have been the subject of communications sent on behalf of several mandate holders, most recently that relating to Mr. Suwicha Takor on 6 April 2009. On 15 September 2008, an urgent appeal letter was sent regarding the detention of Australian author Mr. Harry Nicolaides. A detailed response was received on 17 October 2008, but clarification is sought on the basis of new information received.

2382. According to new information received, in recent months, an increasing number of individuals have been subjected to criminal investigations and detained on charges of lèse majesté in accordance with Article 112 of the Thai Criminal Code. The aforementioned article stipulates that anyone who is found to have defamed, insulted or threatened a member of the monarchy shall be punishable with a sentence of between three and 15 years of imprisonment. Individuals have the right to file a complaint with the police against anyone who they deem to have defamed the monarch and members of the royal family. Police investigations often take years to process. There are about 32 lèse majesté cases pending with the Police Investigations Bureau, including the following:

2383. On 23 June 2009, Mr. Jitsanu Promsorn, a leader of the movement “United Front for Democracy against Dictatorship”, was arrested by police and is to be charged with violating Article 112 of the Criminal Code for allegedly making lese majesté remarks in a speech he made at Sanam Luang square in Bangkok.

2384. In April 2009, Ms Chronic [Chiranuch] Premchaiporn, owner of a news website (Prachatai.com) was arrested and charged with contravention of Article 112 of the Criminal Code. The charges relate to a comment posted by one user on her website which allegedly berated Queen Sirikit. Ms Premchaiporn faces multiple counts that could, potentially, lead to an extended prison sentence.

2385. On 20 January 2009, Dr. Giles Ji Ungpakorn, an associate Professor of political science at Chulalongkorn University, was charged with lèse majeste following a complaint received by police that his book entitled “A Coup for the Rich”, insulted the monarchy. The academic left for the United Kingdom on 8 February 2009 citing fears that he would not have a fair trial in Thailand.

2386. On 6 November 2008, Ms Boonyuen Prasertying, leader of the Progressive Citizen Group, was sentenced to 12 years of imprisonment for defaming the Heir Apparent, with the penalty reduced to six years due to her guilty plea. Ms Prasertying was involved in demonstrations at Sanam Luang to protest against the military change of Government in 2006, and turned herself into the police on 15 August 2008 after being informed that she had been charged with lèse majesté.

2387. In July 2008, Ms Daranee Charnchoengsilpakul, a campaigner for former Prime Minister Thaksin Shinawatra, was arrested after delivering a speech at a rally in Bangkok which criticised the manner by which the change of Government was brought about in 2006 and the monarchy. The trial began at the end of June 2009, with the judge ordering the case to be heard behind closed doors on national-security grounds. Ms Daranee remains in detention pending trial on charges of lèse majesté, despite being acquitted of other charges arising from the same events. The trial date has been set for 5 August 2009.

2388. In July 2009, police initiated an investigation into the entire Board of the Foreign Correspondents’ Club of Thailand (FCCT), including its Vice-President and British Broadcasting Cooperation (BBC) correspondent Mr. Jonathan Head, on the grounds of lèse majesté. The FCCT board members include journalists employed by the BBC, Bloomberg, the Wall Street Journal and Inter Press Service. The Board is reportedly being investigated for insulting the monarchy by producing and selling a compilation of DVDs, one of which contains a speech made at the club in August 2007 by Mr. Jakrapob Penkair, then Office Minister of former Prime Minister Thaksin Shinawatra. The speech had been criticised as anti-monarchy by an individual who lodged the complaint. In addition, Mr. Head had already been facing lèse majeste charges for organizing the seminar which allowed Mr. Jakrapob to make the speech. Mr. Jakrapob also faced charges of lèse majesté related to the
presentation.

2389. The Ministry of Information and Communications Technology (MICT) has blocked 32,500 website pages citing lèse majesté grounds. Justice Minister, His Excellency Pirapan Salirathavibhaga, has called on concerned agencies to take urgent action against websites allegedly critical of the Thai monarchy. More than 10,000 websites are currently being monitored. It has also been reported that dozens of internet users who posted comments on web boards have been arrested and that some will face criminal charges. In 2007, the video sharing website “YouTube” was blocked for several months. In a recent development, the lèse majesté law has been enforced jointly with provisions of the 2007 Computer Crime Act.

2390. Concern was expressed that the aforementioned events may be a direct attempt to prevent independent reporting in Thailand, thus stifling freedom of expression in the country.

Response from the Government

2391. In a letter dated 19 November 2009, the Government informed that Thailand takes allegations concerning the lèse-majesté law very seriously, and will do its utmost to clarify any misunderstanding about the law. The Government provided the following information with regard to lèse-majesté law in Thailand.

2392. The lèse-majesté law is part of Thailand’s criminal code, which also contains general provisions on defamation and libel of private individuals. It provides that the King shall be held in a non-violable position and that the King shall be respected and no one shall accuse or file charges of any sort against him. This is in accordance with article 8 of the 2007 Thai Constitution.

2393. The rationale behind the law is to protect Thailand’s national security because under the Thai Constitution, the monarchy is one of Thailand’s principal institutions. As Thai history has shown, the bond between the Thai people and this principal institution is deeply rooted in the history of the Thai nationhood. Furthermore, the monarchy has been central to the Thai identity, even after Thailand changed from a system of absolute monarchy to a parliamentary democracy with a constitutional monarchy in 1932.

2394. The law also gives protection to the rights or reputation of the King, the Queen, the Heir-apparent, or the Regent in a similar way libel law –which is a criminal offence- does for commoners. However, because of their exalted position – the King and other members of the Royal Family are above politics and are held with high reverence by the people- Thai law does not provide for the monarchy to take legal action against and be in conflict with the people or allow them to comment or act in their own defence. The rationale is also similar to the law on contempt of court. These institutions should remain above conflict and not be drawn into one.

2395. The law concerning lèse-majesté has been enacted not by any demand from those it aims to protect. The King himself is not to be averse of criticisms, having publicly expressed, in a nationwide address, his discomfort with the lèse-majesté law and his disagreement with the notion that “the King can do no wrong”. However, the King is not in a position to amend the law, which has the support of the general public. Legislative power lies entirely with the Parliament, which exercises the will of the Thai people.

2396. Due to what the King has done for their well-being, most Thais are profoundly respectful and highly protective toward the King. Such is part of the cultural or social values that have shaped the Thai public’s views regarding the lèse-majesté law and the protection of the monarchy as a principal institution.

2397. There is a real concern that in recent years, and amidst political differences, the monarchy has, for various reasons, been drawn into the current domestic political situation. In certain instances, the views expressed against the monarchy have been such that they advocate hatred or hostile feelings towards this important national institution and could undermine national security. Such a situation has prompted relevant government agencies to increase their monitoring and enforcement of applicable laws wherever violations occur.

2398. However, the Royal Thai Government recognizes that there have been problems with the enforcement of the lèse-majesté law, which have led to its abuse. The conditions for its enforcement will therefore be clarified. The Prime Minister has stated that the Government must uphold the laws, but would not allow people to interpret the laws too liberally and abuse them. He has already discussed with the Royal Thai Police about the necessity of enforcing the law with caution so that the law would not be abused. He has instructed the Ministry of Justice to draw up standard operation procedures so that the public knows the boundaries of this law.

2399. Thailand is committed to upholding the rights of all persons to freedom of opinion and expression as stipulated in the ICCPR and the 2007 Thai Constitution. The lèse-majesté law is not aimed at curing these rights, nor the legitimate exercise of academic freedom, including the debates concerning the monarchy as an institution, which have taken place in the past. However, when these comments and opinions amount to accusations, then the person concerned should also be held accountable for the views expressed. This applies whether the target of such accusations is an individual or the monarchy. The difference lies in the fact that the monarchy is constrained in defending itself against those accusations.

2400. The lèse-majesté law serves not only the purpose of upholding national security, but also provides such protection to the monarchy.

2401. As with other criminal offences, proceedings on lèse-majesté cases are conducted in accordance with due legal process. Under the Thai Criminal Procedure Code, a person who finds a suspected lèse-majesté act may, on his or her own, set in motion legal prosecution by lodging a formal complaint with the relevant authorities. Facts and evidence must then be gathered and investigated first by the police to establish the case before it can be submitted and screened by the public prosecutor in accordance with due process of law. Only thereafter may the public prosecutor bring the case before the court. Here it should be noted that complaints are dropped if the police finds no ground to proceed.

2402. According to the police statistics, in 2006, the police received 44 complaints related to Section 112 of the Criminal Code. Of these, the police recommended that 31 cases should not be prosecuted. In 2007, the police recommended prosecution in only 7 out of 36 cases. In 2008, out of a total of 56 cases, they recommended the public prosecutor to proceed with 20 and not to prosecute 8. Four cases were dropped and 24 remain under investigation.

2403. Throughout the legal process, the defendant has the right to contest the charges and the right to a fair trial, as well as assistance from a legal counsel, if the case is brought before the court.

2404. The court may decide to hold a trial on a lèse-majesté case in camera. Thai law provides that the judge may use discretion to hold closed trials in certain cases if they deemed to involve sensitive matters in the interest of public order, good morals or national security, which is consistent with practice in other countries as well as the relevant international law (art. 14 of the ICCPR).

2405. As for those found guilty, they have the right to appeal to higher courts, and once their cases become final, they may request royal pardons. It is not uncommon for royal pardons to be granted in such cases.

Letter of allegations

2406. On 28 August 2009, the Special Rapporteur sent a letter of allegation to the Government regarding the creation of an Information Technology taskforce within the Ministry of Information and Communications Technology (MICT) allegedly to enforce the lèse majesté provisions of the Thai Criminal Code.

2407. The Special Rapporteur noted that a number of communications concerning lèse majesté have been sent to the Government on behalf of several mandate holders, most recently that relating to criminal charges brought against individuals on the basis of lèse majesté on 31 July 2009. He expressed that he looked forward to receiving a response to the communication, but sought clarification on the basis of new information received.

2408. According to new information received, a new police taskforce, known as the Information Technology taskforce and headed by Police Lt. General Somdej Kahokahm, has been created within MICT. This taskforce reportedly includes webmasters and computer-literate personnel to monitor websites and to identify those posting content that violates lèse majesté.

2409. Concern was expressed that the creation of this body will further curtail the right to freedom of opinion and expression in Thailand, particularly given the fact that under the Computer Crime Act, which took effect in 2007, the individual records of Internet users must be kept by Internet Service Providers for 90 days and can be examined by the authorities without referring to a judge.

Observations

2410. The Special Rapporteur thanks the Government for its responses, but regrets that at the time of the finalization of this report, the Government had not transmitted a reply to his communication of 28 August 2009.


Actions

Information

One response

16 06 2010
Jitsanu Promsorn a lese majeste suspect? « Politicalprisonersofthailand's Blog

[…] might have noted that, according to a UN document we posted on recently, on 23 June 2009, Mr. Jitsanu Promsorn, a leader of the United Front for […]




%d bloggers like this: