Arbitrary detention of pro-democracy activists

3 09 2016

The following is a submission to the 33rd Regular Session of the United Nations Human Rights Council by the Asian Legal Resource Centre:

ALRC-CWS-33-007-2016
August 29, 2016

THAILAND: End Arbitrary Arrest and Arbitrary Detention against pro-democracy activists

The Asian Legal Resource Centre (ALRC) wishes to draw the attention of the UN Human Rights Council (UNHRC) to the fact that on 11 May 2016, in response to expressed concerns about freedom of expression and opinion, Thailand’s delegation to the Universal Periodic Review stated to the UN Human Rights Council (HRC) that the Government “encourages exchanging of views including through public hearings, about national reform and drafting of the new Constitution by all sectors of the society, both at national and international level.”.

The ALRC would like to point out the manifest inaccuracy of this statement. The May 2014 Military coup, establishing the National Council for Peace and Order (NCPO), the junta ruling body, has sent Thailand’s human rights situation into a free fall. Although the Government and the NCPO scheduled the date of 7 August 2016 for the constitutional referendum, the rights groups noticed that the referendum process was not “Free and Fair”. This is due to the fact that the government imposed the Head of the NCPO No. 3/2015, the Constitutional Referendum Act B.E. 2559 (2016), Article 116 of Criminal Code (Sedition), and the Computer-Related Crime Act B.E. 2550 (2007) to restrict people’s right to discuss and criticise decisions about their country in the draft of Constitution and referendum process.

According to Thai Lawyers for Human Rights (TLHR), from 29 April 2016 to 5 August 2016, at least 195 individuals have been arrested and detained. Of these, 149 individuals were charged with the Head of the NCPO No. 3/2015, 28 individuals were charged with the Constitutional Referendum Act B.E.2559 (2016), 13 individuals were charged with Article 116 of Criminal Code (Sedition), and one person was charged with the Computer-Related Crime Act B.E. 2550 (2007). Many of the charges against individuals, which include student activists, labor activists, reporters, and ordinary persons, involve denials of rights to freedoms of expression, association, and assembly in the referendum process. Apparently, the Government fails to recognize rights guaranteed by Articles 19 of the Universal Declaration of Human Rights (UDHR) and Article 25 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Thailand in 1948 and 1996, respectively.

It can be clearly seen that the deprivation of liberty, especially arbitrary arrest and arbitrary detention result from the exercise of the rights to freedoms of expression, association, and assembly. Therefore, the government also fails to recognize rights guaranteed by Article 9 of the ICCPR. Moreover, the ALRC has found that the rights of individuals who were prosecuted by the authorities do not accord with Criminal Procedure Code and Article 14 of the ICCPR. The ALRC is gravely concerned with the violation of internationally protected fair trial rights, especially right to have adequate time and facilities for the preparation of his defence, and rights to fair hearing by a competent, impartial, and independent tribunal in the Military Court.

For instance, the police accused 13 pro-democracy activists of violating the Head of the NCPO No. 3/2015, which bans political gatherings. The activists were seeking to distribute campaign flyers for the upcoming draft constitution referendum. On 23 June 2016, at around 5:30 p.m., combined forces of police and Military arrested the New Democracy Movement (NDM), student activists, and members of the Triumph Labour Union. All 13 of them were arrested while they were distributing leaflets, fliers, and documents to passers-by. The documents give a little information about the draft Constitution and explain the reasons why people should reject it. All of them were apprehended and taken to the Bang Sao Thaong Police Station. They were detained in police custody overnight and six of them who requested bail during the police stage were denied bail.

On 24 June 2016, all the 13 were brought to the pre-trial remand hearing at the Bangkok Military Court. Although, the alleged offenders’ attorneys filed a motion to object to the remand request, citing that “the Head of the NCPO No. 3/2015 is not an applicable law and its Article 12 (ban on any political gathering of five persons or more) is a restriction on the rights to freedom of expression and peaceful assembly, which are recognized in the ICCPR, to which Thailand is a state party. Also, the right to freedom of expression should not be criminalized. In addition, the NCPO Announcement no. 37/2014 which specifies the jurisdiction of the Military Courts states that the Military Court can only adjudicate cases relating to offences against the Announcements or Orders of the NCPO, not the Order of the Head of the NCPO. Therefore, the Bangkok Military Court has no power to review the case and to conduct the remand hearing in this case.

Nevertheless, the Military Court persisted to issue a writ to have the 13 alleged offenders remanded, claiming that they were just arrested and more time was needed for police investigation including several more witnesses to be interviewed and deeming that the objection of the alleged offenders was a legal defence. Thus, the Court dismissed the objection to the remand motion, and approved a 12-day pre-trial remand, as submitted by the police.

In addition, on 10 July 2016, the Ban Pong police searched the vehicle of the three NDM activists, and found campaign material about the Constitutional Referendum and “Vote No” fliers. They were then held in custody for questioning, together with a reporter from Prachatai. No charges were initially pressed against them, but afterwards the Commander of the Provincial Police Region 7 instructed the officer to charge them with violating the Constitutional Referendum Act B.E. 2559 (2016) for preparing to distribute the fliers.

The officials have thus seized the evidence and informed the arrestees of the charge against them for “having transmitted a text, or an image, or sound through the print media, or radio, or television, or electronic media, or other channels, which are inconsistent with the truth or are violent, aggressive, rude, inciting or threatening and aimed at preventing a voter from casting a ballot or vote in any direction shall be considered as disrupting the referendum”, which is an offence of the Constitutional Referendum Act’s Section 61 Paragraph Two.

Of late, at 8:20 p.m., it was reported that four vehicles of police officials have laid siege to the residence of Mr. Panuwat Songsawatchai, student of Faculty of Political Science, Maejo University Phrae Campus, Maejo University. Mr. Songsawatchai was another suspect in the same case, who was summoned to turn himself in at the Ban Pong Police Station as a result of his activity at the referendum monitoring center in the morning. He was pressed with the same charge as the four individuals.

On 11 July 2016, at 9:00 a.m., all five were brought to the pre-trial remand hearing at the Provincial Court of Ratchaburi. The police investigator of Ban Pong Police Station asked the Court to have them remanded for 12 days and the Court approved what the police submitted. However, five alleged offenders have been released by the order of the Court, by placing bail bond at 140,000 Baht (around 3,975 $USD) each.

Lastly, only one day before the referendum, the Thai authorities arrested two pro-democracy activists in Chaiyaphum Province, northeastern Thailand, for distributing anti-Constitution flyers. One of the students, Mr. Jatupat Boompatararaksa, a core member of the Northeastern (E-Saan) New Democracy Movement (NDM) activist group, refused to apply for bail and had been on hunger strike in the District Prison of Phu Khiao. He preferred to affirm his innocence and to protest against the country’s broken justice system. The other student, Mr. Wasin Prommanee, has been bailed out.

According to the inquiry officials, the two alleged offenders were accused of committing an offence against the Constitutional Referendum Act’s Section 61 (1) and Section 61 paragraph Two, punishable by not more than ten years of imprisonment, a fine of 200,000 Baht, and against the Announcement of the Council for Democratic Reform under Constitutional Monarchy (CDRM) no. 2, the previous junta, punishable by not more than six months of imprisonment or a fine of not more than 1,000 baht or both.

In view of the above, the ALRC requests the Human Rights Council to urge the Thai government to immediately drop all charges against political activists, especially student activist and to release those jailed for voicing dissent on the draft charter in the run-up to the referendum. In addition, the Thai government should suspend the use of military courts and military orders in cases involving civilians. These measures are now urgently needed as Thailand moves towards an election in 2017 aimed at restoring democracy, as proposed in the government’s roadmap.

Finally, the ALRC believes that the election next year represents an opportunity for Thailand to meet the commitment it made at the UN Human Rights Council during its Universal Periodic Review in May 2016 to fully respect the freedom of expression, and therefore guarantee a more inclusive and participatory process that involves all political parties, civil society, and the media in an open and non-threatening environment.

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.





ALRC: Human rights in crisis three months after coup

5 09 2014

Reproduced in full from the Asian Legal Resource Centre:

ALRC-CWS-27-12-2014
September 5, 2014

HUMAN RIGHTS COUNCIL
Twenty seventh session, Agenda Item 4, General Debate

A written submission to the UN Human Rights Council by the Asian Legal Resource Centre

THAILAND: Human rights in crisis three months after coup

1. The Asian Legal Resource Centre (ALRC) wishes to raise grave concerns with the Human Rights Council about the deepening human rights crisis in Thailand following the 22 May 2014 coup launched by a military junta calling itself the National Council for Peace and Order (NCPO) and led by General Prayuth Chan-ocha. The NCPO has claimed that it carried out the coup for the vague purpose of “reform” and with the intention to “return happiness to the people.” Instead, the NCPO has carried out mass arrests and arbitrary detention, used executive power to push through a number of orders and measures likely to be damaging to human rights, engaged civil and military courts as tools to restrict political freedom, and extensively constricted freedom of expression. Martial law, which was declared on 20 May 2014, remains in force. After three months of military rule, a temporary constitution bereft of necessary rights protections has been announced and General Prayuth was elected as prime minister by an assembly of 194 people hand-picked by the NCPO.

2. The view of the Asian Legal Resource Centre (ALRC) is that the actions carried out by the NCPO during the first three months of military rule represent significant derogations of Thailand’s responsibilities as a State Party to the International Covenant on Civil and Political Rights (ICCPR).

3. From the outset, the ALRC maintains that no “time of public emergency which threatens the life of the nation” exists in Thailand to justify the introduction of martial law or the military coup, and therefore no grounds exist under Article 4(1) of the ICCPR for Thailand to derogate from these obligations. Although the country has been experiencing political unrest, this unrest is protracted, and nothing in the current circumstances justified the introduction of these measures. Furthermore, the unrest is in large part a consequence of the last military coup, carried out on 19 September 2006. The assessment of the ALRC that the 22 May 2014 coup and the assault on human rights is likely to further intensify, rather than resolve, the unrest.

4. The NCPO has severely restricted freedom of expression through the issuance of Orders No. 97/2557 [2014] and No. 103/2557 [2014] which place restrictions on criticism of the junta and through the use of Article 112 of the Criminal Code, which stipulates 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 ALRC has repeatedly raised the matter of the damage done to the right to the freedom of expression by the use of Article 112 in a series of statements to the Council over the previous four years, the most recent two being those submitted during the twenty-fifth session in March 2014 (A/HRC/25/NGO/61) and the twenty-sixth session in June 2014 (A/HRC/26/NGO/58).

5. While Article 112 has been part of the Criminal Code since the last major revision in 1957, available statistics suggest that there has been a substantial increase in the number of complaints filed since the 19 September 2006 coup and a dramatic increase in action taken in cases following the 22 May 2014 coup. According to the Internet Dialogue on Law Reform (iLaw), there are 13 new cases that are known to have entered the judicial process since the coup; additional, unreported cases may also be in process. In addition, per Order No. 37/2557 [2014], all complaints of violations against the crown and state, including those under Article 112, filed subsequent to the coup are placed within the jurisdiction of the military court, which restricts the rights of those subject to proceedings, including a denial of the right to appeal.

6. The ALRC is particularly concerned about the recent arrests of Patiwat (last name withheld) and Pornthip (last name withheld), who were arrested following a complaint being filed against them under Article 112 in relation to a performance of a play, “The Wolf’s Bride” (Jao Sao Ma Pa) held in October 2013. They were arrested on 14 and 15 August 2014 and have been held without bail since their arrests while the investigation against them continues. Their arrests are part of a broader planned campaign of arrests of those alleged to have violated Article 112 which have been catalyzed by groups of royalist citizens, such as the group calling itself the National Rubbish Collection Organization, which aims to remove “trash,” by which they mean those who question the institution of the monarchy, from Thai society. Law should be used to limit these vigilante actions and protect free speech, rather than to aid in its restriction.

7. 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 Article 112 is classified as a crime against national security within the Criminal Code, and this is frequently cited by the Government of Thailand when 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. The exercise of freedom of expression is frequently messy and productively contentious, but this does not equate to a threat to public order or morals. To raise questions about the operations of power in society are a necessary part of constructing a polity grounded in human rights and the rule of law, not a threat to it.

8. The restriction on freedom of expression and political freedom has also included restriction of activities not explicitly connected to either the junta or the institution of the monarchy. Since the coup, the NCPO has used the provisions of martial law to intimidate and foreclose discussion on development and capital projects affecting citizens, such as those working against the negative affects of gold mining in Loei and those working to raise awareness about the implications of energy sector expansion. For example, on 20 August 2014, eleven activists of the Partnership on Energy Reform were arrested while carrying out a peaceful and non-partisan walk calling for public discussion and to encourage citizens to be actively engaged in decisions about energy development. The walk was surrounded by military troops and the eleven activists were arbitrary detained and held for three days and nights at the Senanarong Army Camp in Songkhla Province. While the ALRC welcomed their release, they should not have been detained in the first place. Further, an additional series of arrests of nine individuals who joined the walk were carried out on 24 August 2014 as this statement was being completed, and the authorities have indicated that those arrested will be charged and processed in the military court for violating martial law, which prohibits public gatherings of five or more persons.

9. The Asian Legal Resource Centre would also like to remind the Government of Thailand of its obligations to uphold Article 9 of the ICCPR, which addresses arbitrary detention and notes specifically that, “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. 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…” During the first two months following the coup, the NCPO immediately began a process of mass arrests of those deemed to oppose them. Under the terms of martial law, soldiers can detain and interrogate anyone for up to seven days without having to provide evidence of wrongdoing or bring formal charges. People arrested can be held at irregular places of detention, including permanent or temporary military bases or other sites designated as places of detention. Detention in irregular places means that the possibility for rights violations, including torture, forced disappearance and extrajudicial execution is greatly increased. Those detained, or targeted for arrest and detention, include politicians from all sides of the political spectrum, red and yellow shirt activists, academics, human rights defenders, writers, publishers, and other dissidents and citizens. The methods of arrest and detention have varied widely. While the use of arbitrary detention has faded from public view in the third month of rule by the NCPO, the ALRC remains gravely concerned about the extent of its use.

10. Further, on 2 and 3 August 2014, Kritsuda Khunasen, a red shirt activist and human rights defender who was arbitrarily detained for nearly a month following the coup, released a series of video interviews in which she described being tortured while in detention. She released the interviews, in which she detailed a range of physical and emotional abuse, after she left Thailand. The response of the junta was to first discredit her account, and then to bring weapons charges against her, despite their statement upon her release from detention that they were not going to bring any charges against her. The ALRC urges the Council to remind the Government of Thailand that as a state party to the Convention Against Torture and Other Cruel, Degrading or Inhuman Treatment (CAT) it is obligated to take action to prevent torture, hold perpetrators to account, and provide redress and protection to victims of torture. At a minimum, this would involve an independent investigation into the claims made by Kritsuda Khunasen, rather than to respond with an immediate denial of their veracity. The ALRC is concerned that the torture reported by Kritsuda Khunasen may not be an isolated incident and may instead point to a broader pattern of the use of torture by the NCPO against those deemed to be its opponents.

11. In view of the above and in line with the International Covenant on Civil and Political Rights, the Asian Legal Resource Centre calls on the United Nations Human Rights Council to:

a. Call on the Government of Thailand to immediately revoke martial law and return to civilian rule;

b. Urge the Working Group on Arbitrary Detention to carefully monitor events in Thailand and in particular, derogation of responsibilities under the International Covenant on Civil and Political Rights, and to call on the Government of Thailand to act in accordance with the protection and promotion of human rights;

c. Urge the Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment to investigate the reports of torture by those held in detention following the coup by the NCPO, and to call on the Government of Thailand to act to prevent, investigate, and redress instances of torture;

d. Urge the Special Rapporteur on the Situation of Human Rights Defenders to carefully monitor events in Thailand and in particular, the targeting of human rights defenders to safely carry out their work; and

e. Urge the Special Rapporteur on the Freedom of Opinion and Expression to continue ongoing monitoring and research about the broad situation of constriction of rights and individual cases in Thailand and how this is affected under military rule.





Coup and courts

3 06 2014

As we usually do, PPT is posting this story from the Asian Human Rights Commission/Asian Legal Resource Centre. We have a problem with their headline. It is not correct to say that the coup has led to the courts being jettisoned. For example,  while military courts have been made dominant, the Criminal Court is still operating and hearing lese majeste cases.

The courts and the so-called independent institutions may be subordinate, but they were kept. There’s something in that.

THAILAND: Coup Jettisons Courts

ALRC-CWS-26-08-2014
June 3, 2014

HUMAN RIGHTS COUNCIL
Twenty sixth session, Agenda Item 3, General Debates

A written submission to the UN Human Rights Council by the Asian Legal Resource Centre

In Thailand, the legitimate and democratically elected government of Thailand has been overthrown and the military has usurped power by force. The takeover is a clear and complete violation of the constitution of Thailand. Enormous efforts had been made by the Thai people to develop a democratic constitution. The 1997 constitution was created after years of consultation with all sections of Thai society. One of the preoccupations at the time was to end the entrenched practice of the military overthrowing legitimate governments and taking power. Previously, in Thailand, there had been 18 military coups over a period of 81 years. Thwarting efforts and disappointing expectations, the military has taken over power again.

Among the many problems that this takeover by the military has thrown up are the place and the role of courts in Thailand today. Recently, the constitutional court of Thailand forced the resignation of the Prime Minister on the ground that she had violated the constitution in dismissing a particular official. What will the constitutional court do now that the whole constitution has been violated by the military? Will the constitutional court of Thailand declare that the military coup is illegal and therefore the military has no mandate and power to rule? Or has the constitutional council itself been brought to a halt?

The Human Rights Council of the United Nations needs to declare that the military coup is illegal and unconstitutional and violative of all liberal democratic principles. The council must demand that power be handed over to the legitimate government and that changes to the government should be brought about via democratic process enshrined in the constitution. The Human rights council must step in to protect the sovereignty of the Thai parliament and the independence of the judiciary.

Shortly after usurping power, the military made several declarations. It was declared that those who oppose the military would be brought to trial before military courts. Several offenses were also declared and the military arrested many persons and continues to arrest others. It is expected that there will be large-scale arrests of political leaders, political activists, and civil society activists. In this manner, the military has attributed to itself the powers of arrest, displacing the country’s policing system.

All criminal justice principles and procedures have been abandoned and thus the very functioning of the criminal justice framework of the country has been paralysed. What is now taking place by way of arrests, detentions, and proposed trials before military courts is not the criminal justice framework as envisaged by the constitution but the operation of an alien and illegal system introduced by the military.

Among other things, the military has also declared that it will prosecute persons who campaigned against the operation of lese majeste and that the trials against persons arrested for such campaigns will also be brought before the military courts. Thus, the military has taken over the roles of complainant, investigator, prosecutor, judge, and executioner. Even the family of a prisoner, serving a sentence related to the lese majeste law, has been served with summons to appear before the military.

The net result is that the role of the judiciary in Thailand has been brought to a grinding halt. The people of Thailand no longer enjoy the protection of any of their rights, including the right to be adjudicated by legitimate courts that observe the principles and practices of fair trial.

The Human Rights Council needs to give due consideration to the fact that this coup is a violation of all the principles on which United Nations’ charter is based. The sovereignty of the nation, to be exercised by a legitimately elected government, has been completely undone. The people’s right for protection of human rights, in terms of United Nations conventions to which the Thai government is a party, are all being completely and blatantly violated. This extraordinary situation, in which a people of a country have lost the capacity to resort to their own courts for the protection of their rights, needs to receive the highest consideration from the council. The council needs to come to the rescue of democracy in Thailand. It must intervene to stop all trials by the military courts, and reinstate peoples’ right to have all matters of legality and illegality be determined by their legitimate courts.





ALRC, lese majeste and the UN

26 02 2014

Reproduced in full:

ALRC-CWS-25-07-2014
February 24, 2014

HUMAN RIGHTS COUNCIL
Twenty fifth session, Agenda Item 3, General Debate

A written submission to the UN Human Rights Council by the Asian Legal Resource Centre

THAILAND: Legal and Extralegal Threats to Freedom of Expression

1. The Asian Legal Resource Centre (ALRC) wishes to raise grave concerns about the intensification of legal and extralegal threats to freedom of expression in Thailand. Carried out in the name of protecting the monarchy, this range of threats constitutes the entrenchment of the normalization of the violation of human rights and curtailment of freedom of expression. This statement is the eighth 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). During the twenty-third session in June 2013, the ALRC emphasized the regularization of the crisis of freedom of expression, and noted that constriction of speech had become constitutive of political and social life in Thailand (A/HRC/23/NGO/42). During the twenty-fourth session in October 2013, the ALRC emphasized the dangers of the normalization of the violation of human rights in the name of protecting the monarchy (A/HRC/24/NGO/35).

2. Over the course of the prior seven statements, the ALRC first noted with surprise the active use of measures to constrict speech, then tracked the expansion of this use, and finally, the entrenchment of the foreclosure of freedom of speech. The ALRC is again raising the issue of freedom of expression with the Council because the law has continued to be actively used to violate the right to freedom of expression and extralegal threats to freedom of expression, and human rights broadly, have emerged in Thailand. In the statement submitted to the Council in October 2013, the ALRC warned that the routine denial of bail and the use of vague references to national security to attempt to legitimize the violation of the human rights of those with dissident views had become normalized. In this statement, the ALRC wishes to alert the Human Rights Council to ongoing developments that indicate the urgency, and growing difficulty, of addressing the crisis of freedom of expression in Thailand.

3. There are two primary laws that are used to both legally constrict freedom of speech in Thailand and create a broad climate of fear for those who hold dissenting opinions. Article 112 of the Criminal Code 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 Computer Crimes Act (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 that 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 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 continuously failed to provide up to the present. The CCA has often been used in combination with Article 112 in the seven years since its promulgation; similar to the use of Article 112, the Government of Thailand has not made complete usage information available. This failure to make information public about the frequency and conditions of use of both laws creates fear and diminishes the space for freedom of expression through the use of secrecy and creation of uncertainty.

4. In addition to the continued use of the law to constrict speech, recent events indicate that there is an increase in the potential for extralegal violence against those who hold dissident views. During the statement submitted to the nineteenth session (A/HRC/19/NGO/55) in March 2012, the ALRC warned the Council about the threats made against members of the Khana Nitirat, a group of progressive legal academics at Thammasat University who proposed reform of Article 112. In response, hundreds of threats were posted online against the group, calling for the members to be attacked, killed, beheaded, and burned alive. Subsequently, one of the members of the group, Professor Worachet Pakeerut, was assaulted outside his office at Thammasat by two young men who later told the police that they attacked him because they disagreed with his ideas.

5. On February 12, 2014, an attack on another progressive academic, Professor Somsak Jeamteerasakul, a history professor at Thammasat University and outspoken political and cultural critic, indicates a renewed increase in the permissive climate for extralegal intimidation and violence of those who hold dissenting opinions. Two assailants fired repeated gunshots at the home and car of Professor Somsak. Although he did not sustain any physical injuries, the damage to his car and house indicate that the violence was intended to be deadly. The attack took place during the day, while Professor Somsak was at home, which lends further credence to the idea that the perpetrators intended to inflict harm or death and that they were unconcerned with being seen.

6. Professor Somsak Jeamteerasakul’s writing and teaching have inspired many students and citizens to carefully examine the past, present, and persecution of the powerless by the powerful in Thailand. His criticism often makes those in power uncomfortable, and there has been an attempt to use Article 112 to curtail his speech. In April 2011, a police investigation began against him in relation to a complaint likely made in relation to comments he made in article about a Princess Chulabhorn’s (one of the daughters of the current Thai king) appearance on a talk show. This case is still ongoing, even though Article 112 does not apply to Princess Chulabhorn, and so there is no legal restriction of comments made about her. In early February 2014, the deputy spokesman of the Royal Thai Army commented that the Army plans to file additional complaints of violations of Article 112 against Professor Somsak in relation to comments he posted on the social media website Facebook.

7. The ALRC is particularly concerned that the violent attack on Professor Somsak has come so close following the comments of the deputy spokesman of the Royal Thai Army regarding further proceedings under Article 112 against him. While the identities and motivations of the attackers remain unknown pending police investigation, the temporal link to the formal and legal action taken against him by the Royal Thai Army is striking. In addition, given the severe polarization in Thai society which began when the protracted protests against the elected government began in November 2013, this extralegal attack on Professor Somsak is a further indication of the ongoing breakdown of the rule of law in Thailand.

8. The ALRC would like to remind the Thai government that they are a state party to the International Covenant on Civil and Political Rights (ICCPR) and are bound to uphold the human rights principles named therein. In particular, the ALRC would like to call on the Thai state to uphold Article 19 of the ICCPR, in particular, paragraph 1, which guarantees that, “Everyone shall have the right to hold opinions without interference,” and paragraph 2, which guarantees that, “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” It is imperative that the Thai state’s protection of the rights guaranteed in Article 19 and the remainder of the ICCPR be active, rather than passive. Upholding the ICCPR necessarily entails protecting those whose views are dissident and ensuring that they can safely exercise their political freedom. Failure to do so will signal to vigilante actors that attacking those who hold different views are acceptable within the Thai polity.

9. The ALRC would also 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.” Although Article 112 is classified as a crime against national security within the Criminal Code of Thailand, and this, along with the need to protect the monarchy, is frequently cited by the Government of Thailand when faced with the criticism that the measure is in tension with the ICCPR, a precise explanation of the logic for categorizing the measure as such has not been provided to date. Until this explanation is provided, the constriction of freedom of expression is arbitrary and contributes to a climate hostile to human rights.

10. The ALRC is gravely concerned about the ongoing legal and extralegal threats to freedom of expression in Thailand, and their effects on human rights, justice, and the rule of law in Thailand. The intensification of extralegal threats to dissenting citizens’ rights and lives as indicated by the February 2014 attack on Professor Somsak Jeamteerasakul represents a new point of crisis in the longstanding climate of constriction of political freedom in Thailand.

11. 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 ensure that a full investigation into the attack on Professor Somsak Jeamteerasakul is carried out and bring the men who shot at his house and car to justice;
b. Call on the Government of Thailand to release all those convicted or facing charges under Article 112 and the 2007 Computer Crimes Act. At a minimum, those currently being held should immediately be granted bail while their cases are in the Criminal or Appeal Courts;
c. Demand that the Government of Thailand revoke Article 112 of the Criminal Code and the 2007 Computer Crimes Act;
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, and;
e. Request the Special Rapporteur on the freedom of opinion and expression to continue ongoing monitoring and research about the broad 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.

About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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25th Session of the UN Human Rights Council – AHRC

Read this online from ALRC

25th Session of the UN Human Rights Council – ALRC





Delayed accountability and continued impunity for state violence

6 09 2013

From the Asian Legal Resource Centre:

FOR IMMEDIATE RELEASE
September 5, 2013
ALRC-CWS-24-06-2013

Language(s): English only

HUMAN RIGHTS COUNCIL

Twenty-fourth session, Agenda Item 3, General Debate

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

THAILAND: Delayed Accountability and Continued Impunity for State Violence

1. The Asian Legal Resource Centre (ALRC) wishes to raise grave concerns with the Human Rights Council about ongoing impunity for state violence during the crackdown on the supporters of the United Front for Democracy Against Dictatorship (UDD), or the “Red Shirts, during April-May 2010 in Thailand.

2. Beginning in early 2006, the group of citizens who became the People’s Alliance for Democracy (PAD), or the “Yellow Shirts,” began to organize protests calling for the ouster of the elected prime minister, Thaksin Shinawatra, and the protection of the nation and traditional organizations, including the monarchy. On 19 September 2006, the military intervened and launched an extraconstitutional coup to oust Thaksin. While no blood was shed during the coup itself, the widespread political contention and violence in the nearly seven years since the coup can be seen as the legacy of the abrogation of the rule of law. The coup began a cycle of political contention and street protests between the royalist-nationalist PAD, who opposed Thaksin, and the group of citizens who became the populist UDD, who were against the coup. As part of the political contention, the Constitutional Court carried out a series of dissolutions of political parties: first, the Thai Rak Thai Party (TRT) of Thaksin Shinawatra in May 2007, and then the People’s Power Party (PPP), which TRT reconstituted itself as, in December 2008.

3. The political contention reached a height between March and May 2010, when thousands of supporters of the UDD occupied central areas in Bangkok calling for new elections and end to double standards in politics. During the two months of the occupation, the relationship between the UDD and state security forces were often contentious. In response to the protests and the presence of thousands of demonstrators in the capital city of Bangkok, the Democrat Party government of Prime Minister Abhisit Vejjajiva declared a State of Emergency in Bangkok and surrounding areas on 7 April 2010 under the Emergency Decree on Government Administration in a State of Emergency (“Emergency Decree”). On 13 May 2010, the State of Emergency was expanded to include another 12 provinces in northern, northeastern, and central Thailand; by late May, it was expanded to be in force in a total of 24 provinces across the country. The Emergency Decree gives blanket powers to state actors to resolve the State of Emergency, including by making arrests, censoring the press, restricting movement and using armed force. A temporary agency, the Center for the Resolution of the Emergency Situation (CRES) was set up to coordinate state action under the Emergency Decree. During the 14th session of the Council in June 2010, the ALRC expressed concern about the arbitrary interrogation and detention of activists under emergency regulations, as well as the difficulty of securing information about the numbers and nature of the interrogation and detention. (A/HRC/14/NGO/42).

4. In a series of incidents beginning on 10 April 2010 and ending on 19 May 2010, the government of PM Abhisit Vejjajiva decided to use the army and ultimately deadly force to enact a crackdown to remove the UDD protestors from the streets. At least 92 people were killed and at least 2100 were injured during the two-month period. The use of deadly and disproportionate force by Thai state security forces was a significant breach of international human rights standards. While the ALRC notes that some members of UDD may have had weapons, the burden in this instance was on the state to take appropriate measures to protect the rights and lives of citizens.

5. In the over three years since the conclusion of violence, state efforts to document who perpetrated acts of violence and to secure accountability for the overwhelmingly civilian deaths and injuries have been partial at best, and verge on negligence. While the judiciary under the governments of both Prime Minister Abhisit Vejjajiva, and the Pheu Thai government of Prime Minister Yingluck Shinawatra, who was elected in July 2011, have actively prosecuted members of the UDD on charges of terrorism and arson, prosecutors have not brought charges against members of the state security forces for their roles during April and May 2010. In addition, despite extensive state resources being devoted to three different information-gathering processes about the events, the two reports revealed to the public have been flawed and incomplete and one report remains unreleased at present.

6. The ALRC would like to remind the Government of Thailand of the Commission on Human Rights’ updated set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1). The Commission described the obligations of states to end impunity and secure accountability in the aftermath of state violence as follows: “Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.” The ALRC is concerned that without sincere and concerted effort by the Government of Thailand, the long history of impunity in the country will be further consolidated by the failure to bring perpetrators of the violence of April-May 2010 to justice.

7. A series of investigations have been carried out by different kinds of actors, including a state agency, two state-appointed independent bodies, and a citizen group. The citizen group, the People’s Information Center (PIC), released their report in late August 2012; the Truth and Reconciliation Commission of Thailand (TRCT), the first of the independent bodies, released a short report in September 2012 and their full report in July 2013; and the National Human Rights Commission (NHRC), the second of the independent bodies, released their report in August 2013. The report of the state agency, the Department of Special Investigation (DSI), has not been made public. The ALRC would like to highlight that in comparison to the reports of both the TRCT and the NHRC, the report of the People’s Information Center (PIC), a citizen group, released in September 2012, represents a rigorous accounting of the events of March-May 2010. The ALRC views the report of the PIC as an important action by citizens in the service of protecting human rights and ending impunity. Further, particularly in the case of the gross misunderstandings of basic human rights principles reflected in the NHRC report, the ALRC would like to express concern that the state is either not as concerned with securing accountability as citizens, or lacks the capacity to do so. Either of these explanations indicates a significant obstacle to the consolidation and promotion of human rights in Thailand.

8. Although postmortem inquests have been initiated by the state prosecutor and carried out in some of the cases of the April-May 2010 deaths, no charges have been filed against state officials for their clear roles in the violence. To examine but one example, on the final day of the crackdown, 19 May 2010, 6 civilians were killed inside a Buddhist temple, Wat Pathum Wanaram, which was close to the center of the protests. On 6 August 2013, the Bangkok Southern court ruled in the postmortem inquest in Black Case No. C5/2555 that these 6 civilians were killed by soldiers. The court noted that, “The deaths were caused by being shot with .223 or 5.56 mm bullets and the direction of fire was from where the competent officials were stationed to perform their duties to maintain order on the BTS’s rail tracks in front of Wat Pathum Wanaram Ratcha Worawiharn and around Rama I Road. At the instructions of the Center for Resolution of Emergency Situation (CRES), the officials took control over the area of the Ratchaprasong Intersection. And as a result of that, the first deceased died of gunshot wounds on his lungs and heart causing hemorrhage, the second deceased died of gunshot wound that destroyed his lungs, the third deceased died of gunshot wounds that destroyed his lungs, heart and liver, the fourth deceased died of gunshot wounds that destroyed his lungs and liver, the fifth deceased died of gunshot wounds that destroyed her brain and the sixth deceased died of gunshot wounds that went through his oral cavity, whilst no particular perpetrators can be identified” (unofficial translation provided by Prachatai). Given the conclusion by the court, it is incumbent upon the Government of Thailand to ensure that the case does not end with the inquest, but that further action is taken so that the officials responsible for carrying out the violence and the officials responsible for ordering the violence are held to account.

9. In early August 2013, the Parliament began to examine amnesty bills related to political events and violence after the 19 September 2006 coup. On 6 August 2013, the Office of the UN High Commission on Human Rights expressed concern that the draft bills being examined might, if enacted, pardon those involved in the violation of human rights and called on the Government of Thailand to ensure that those responsible for violating human rights be excluded by the amnesty and that perpetrators be prosecuted for their actions. The ALRC would like to echo the OHCHR’s concern and to further note that the categories of state officials to be pardoned by the draft amnesty bill of MP Worachai Hema, the bill currently being examined, are unclear.

10. In view of the above and in line with the principles for the protection and promotion of human rights through action to combat impunity, the Asian Legal Resource Center calls on the UN Human Rights Council to:

  1. Call on the Government of Thailand to ensure that the amnesty bill ultimately passed redresses, rather than consolidates, impunity and the violation of human rights.
  2. Call on the Government of Thailand to ensure that the judicial processes related to April-May 2010 violence do not end with inquests but continue to the prosecution of the responsible state officials in accordance with the law.
  3. Urge the Government of Thailand to expedite the release of the report of the Department of Special Investigation (DSI) regarding the April-May 2010 violence.
  4. Request the Office of the UN High Commissioner on Human Rights to continue monitoring developments related to accountability for the April-May 2010 violence in Thailand.

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24th Session of the UN Human Rights Council – AHRC

Read this online from ALRC

24th Session of the UN Human Rights Council – ALRC





The Normalization of the Violation of Human Rights in the Name of Protecting the Monarchy

1 09 2013

As usual, the Asian Legal Resource Centre gets it right and PPT can do no better than post their statement. Our only question is the number of known cases in jail (convicted or awaiting trial). Our count is six. In addition, we do not know what has happened in the case of Thitinant Kaewchantanont, who was held in a mental hospital. Nor do we know how many cases there are that remain secret or unreported:

FOR IMMEDIATE RELEASE
August 30, 2013
ALRC-CWS-24-02-2013

Language(s): English only

HUMAN RIGHTS COUNCIL

Twenty-fourth session, Agenda Item 3, General Debate

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

THAILAND: The Normalization of the Violation of Human Rights in the Name of Protecting the Monarchy

1. The Asian Legal Resource Centre (ALRC) wishes to raise concerns about the normalization of the violation of human rights in the name of protecting the monarchy in Thailand with the Human Rights Council. This statement is the seventh 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). During the twenty-third session in June 2013, the ALRC emphasized the regularization of the crisis of freedom of expression in Thailand, and noted that constriction of speech had become constitutive of political and social life in Thailand (A/HRC/23/NGO/42).

2. Over the course of the prior six statements, the ALRC first noted with surprise the active use of measures to constrict speech, then tracked the expansion of this use, and finally, the entrenchment of the foreclosure of freedom of speech. The ALRC is again raising the issue of freedom of expression with the Council in order to ensure that the regularization of this threat to human rights does not lead to it being normalized or forgotten. In the statement submitted to the Council in June 2013, the ALRC cautioned that current conditions threatened to normalize 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. In this statement, the ALRC wishes to alert the Human Rights Council to ongoing developments that lend weight to these concerns and underscore the urgency of addressing the crisis of freedom of expression in Thailand.

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 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 continuously failed to provide up to the present. 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 creates fear and diminishes the space for freedom of expression through the use of secrecy and creation of uncertainty.

4. At present, there are 4 persons known to be serving prison terms for alleged violations of Article 112 and/or the CCA and 1 person behind bars while undergoing 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. The Appeal Court upheld her conviction and sentence in May 2013.

b. 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. He has submitted a request for a royal pardon and is awaiting the outcome.

c. 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). He has submitted an appeal to the Appeal Court and is currently awaiting a decision.

d. 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. He has submitted an appeal to the Appeal Court and is currently awaiting a decision.

e. Yutthapoom (last name withheld) has been held in the Bangkok Remand Prison since 19 September 2012 on charges of violating Article 112 following a complaint submitted by his older brother related to a conversation they had while watching television at home. The witness hearings in his case began on 20 August 2013, after he endured 333 days of pre-trial detention.

6. Common to these 5 cases is that 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, despite full cooperation of all parties in investigation and prosecution. 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.”

7. To raise one notable example of the denial of bail, Somyot Prueksakasemsuk (5c above), submitted his 15th request for bail on 24 July 2013. Along with the application, approximately 152,000 USD of property deeds were submitted as security with the request. On 26 July 2013, the Appeal Court denied the request. The justification offered was that as Somyot had been sentenced to a prison term greater than 10 years, if he was released, there was a danger that he might flee. The Appeal Court further noted that, “The actions of the defendant impacted public order and the feelings of the people,” and so his release on bail was not warranted.

8. 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. To offer one example, on 30 July 2012, in Black Case No. 3252/2552, 3466/2552, the Criminal Court found five police officers guilty of brutally murdering Kiettisak Thitboonkrong, age 17, in 2004 as part of the so-called “War on Drugs,” in which close to 3000 people were extrajudicially killed across Thailand. Three of the police offers were found guilty of premeditated murder and hiding a corpse and sentenced to death. One police officer was found guilty of premeditated murder and sentenced to life imprisonment. One police officer was found guilty of abusing his authority to aid in protecting his subordinates from criminal prosecution and sentenced to seven years’ imprisonment. All five police officers were granted bail while they appeal their conviction. In all but one of these instances, the police were sentenced to longer prison terms than Somyot Prueksakasemsuk, yet they were granted bail. Given the explanation by the Appeal Court when they denied Somyot’s request that the length of his sentence meant that he might flee and that his crime impacted public order, granting the police officers bail seems strange. In the absence of an explanation from the Court, this collection of actions suggests that constricting dissident speech and protecting the monarchy are more important to the Thai state than ensuring accountability for extrajudicial violence committed against citizens by state actors.

9. The ALRC is gravely concerned about the effects of the ongoing entrenchment of the constriction of freedom of expression on human rights, justice, and the rule of law in Thailand. The frequency of the exercise of the draconian Article 112 and CCA risks the naturalization and normalization of violations of rights and the constriction of speech and political freedom. 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, along with the need to protect the monarchy, is frequently cited by the Government of Thailand when faced with the criticism that the measure is in tension with the ICCPR, a precise explanation of the logic for categorizing the measure as such has not been provided to date. Until this explanation is provided, the constriction of freedom of expression is arbitrary.

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

  1. Call on the Government of Thailand to release all those convicted or facing charges under Article 112 and the 2007 Computer Crimes Act. At a minimum, those currently being held should immediately be granted bail while their cases are in the Criminal or Appeal Courts.
  2. Demand that the Government of Thailand revoke Article 112 of the Criminal Code and the 2007 Computer Crimes Act.
  3. 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.
  4. 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.

# # #

About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

Read this online from AHRC

24th Session of the UN Human Rights Council – AHRC

Read this online from ALRC

24th Session of the UN Human Rights Council – ALRC

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Regularizing restrictions on free speech

22 05 2013

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.





ALRC on Somyos, his conviction and freedom of expression

15 02 2013

The Asian Legal Resource Centre is an independent regional non-governmental organization holding general consultative status with the Economic and Social Council of the United Nations. It has issue this statement, received via a reader:

February 15, 2013

ALRC-CWS-22-02-2013

HUMAN RIGHTS COUNCIL

Twenty second session, Agenda Item 3, Interactive Dialogue with Working Group on Arbitrary Detention

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

THAILAND: Freedom of Expression in Crisis – The Conviction of Somyot Prueksakasemsuk

1. The Asian Legal Resource Centre (ALRC) wishes to bring the urgent crisis of freedom of expression in Thailand to the attention of the Human Rights Council. This statement is the fifth 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 either 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).

2. As the ALRC has continually stressed, within the context of the political crisis that began with the 19 September 2006 coup and greatly increased with the violence of April-May 2010, the protection of fundamental human rights, including freedom of expression, is essential if there is to be the possibility of successful democratization and the consolidation of the rule of law in Thailand. The 23 January 2013 conviction and lengthy sentenced meted out by the Criminal Court to Somyot Prueksakasemsuk, a long-time labour rights activist and human rights defender, is a clear indication of the willingness of the Thai judiciary to actively obstruct the free exercise of civil and political rights. The ALRC is again raising the issue of freedom of expression with the Council because this decision by the Criminal Court, as well as the comments on the case made by the Constitutional Court and other figures within the judiciary indicate that this case both a profound violation of the rights of an individual citizen and an indication of the intensification of the uncertainty present in the polity and the concurrent dangers to the human rights of all citizens.

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.” While the 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. This failure to provide information itself raises many unanswered questions about the use of the law to diminish space for freedom of expression through the use of secrecy and creation of uncertainty. What has instead become explicitly clear is that the effects of the use of article 112 increasingly mirror extrajudicial forms of intimidation of citizens and constriction of their rights.

4. Somyot Prueksakasemsuk was arrested and taken into custody on April 30, 2011, and shortly thereafter charged with two violations of article 112. In Somyot’s case, the charges were for allegedly allowing two articles with anti-monarchy content to be published in Voice of Taksin magazine, a publication with which he worked. Somyot was held for six months of pre-trial detention. The hearings in his trial (Black Case No. O.2962/2554) 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 (A/HRC/WGAD/2012/35).

5. On January 22, 2013, the Criminal Court found Somyot Prueksakasemsuk guilty on both charges, and he was sentenced to ten years in prison in this case, as well as to one year in prison in relation to a prior case. The prosecution argued that his work in printing, distributing and disseminating two issues of Voice of Taksin magazine which contained content deemed to violate article 112 was itself an equal violation of the law. In the abbreviated decision released on January 23, 2013, the Court offered this interpretation of Somyot’s guilt:

“The two Khom Khwam Kit articles in Voice of Taksin did not refer to the names of individuals in the content, but were written with an intention to link incidents in the past. When these incidents in the past are linked, it is possible to identify that (the unnamed individual) refers to King Bhumipol Adulyadej. The content of the articles is insulting, defamatory, and threatening to the king. Publishing, distributing, and disseminating the articles is therefore with the intention to insult, defame, and threaten the king” (ALRC translation).

6. The Court decision raises significant questions regarding freedom of expression and Government of Thailand’s willingness, or lack thereof, to protect it. The threats to freedom of expression rest on how evidence was deployed in this case, how intention was assigned, and how the punishment was then calculated on the basis of these two actions.

a. As in other lese majeste cases, the Court’s decision turned on the issue of intention. The Court’s analysis that juxtaposition of events and ideas in the two articles in question implied the individual being discussed was King Bhumipol was the basis on which the assessment of the intention to insult, defame, or threaten him was made. At best, by default, this analysis can remain only speculative.

b. Somyot Prueksakasemsuk was not the author of the two articles in question. This was of no concern for the Court. Here, the Court has equated involvement in the editing, publishing, disseminating, or distribution of material that is judged to have the intention to defame, insult, or threaten the monarchy, to also carry criminal intention.

c. On the basis of a speculative analysis of the content of the two articles, and Somyot Prueksakasemsuk’s proximity to them, he was sentenced to ten years in prison. Even if Somyot had been the author of the two articles in question, the ten-year sentence (five years per count, in this case, per article), the length would raise serious questions about the proportionality of punishment. Given the details of this case thus noted, the punishment signals the gravity of the situation in Thailand.

d. This decision firmly established article 112 as an unofficial censorship measure in Thailand. The conviction and punishment of Somyot Prueksakasemsuk is an ominous warning to anyone involved in publishing, distributing or selling print or other media. The uneven enforcement and interpretation practiced under article 112 makes the danger present even more grave.

7. The logic underlying the use of article112 frequently cited by the Court is the uniqueness of Thailand as a nation with the king as the head of state. This decision speaks manifestly to an imbalance in the law of Thailand as written and currently enforced between protecting the sovereign and protecting the human rights of the people residing in the country. In a comment made in October 2012 by the Constitutional Court in relation to a petition filed by Somyot Prueksakasemsuk’s legal team, the Constitutional Court offered a disconcertingly ideological analysis of the position of the king within the Thai polity in order to dismiss the petition that article 112 violates the basic rights of citizens and as the reason for the harsh punishment mandated under article 112. For example, the Constitutional Court noted that the purpose of article 112 of the Criminal Code is to “control the behaviour 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” (ALRC translation).

8. 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 article 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 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. This comment by the Constitutional Court is no different. The exercise of freedom of expression is frequently messy and productively contentious, but this does not equate to a threat to public order or morals. Respect and love for a figure held by some members of a polity is not an adequate reason to put another member of the polity behind bars for allegedly criticizing that figure and restricting everyone’s freedom of expression. To raise questions about the role of the king, or the institution of the monarchy broadly, does not equal a violation of his rights or reputation.

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

a. Call on the Government of Thailand to release Somyot Prueksakasemsuk and all other individuals convicted under article 112.

b. Demand that the Government of Thailand revoke article 112 of the Criminal Code and related measures, which are vehicles for the abuse of human rights by state agents and do not serve the ostensible purpose of protecting national security, let alone any unique national traits or institutional features distinct from those of other modern constitutional monarchies, which do not have recourse to such measures.

c. 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, of which it is a State Party.

d. Request the Special Rapporteur on the freedom of opinion and expression to continue ongoing monitoring and research work about the broad situation of constriction of rights and individual cases, including Somyot Prueksakasemsuk, 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.





ALRC on state impunity

29 08 2012

The Asian Legal Resource Centre (ALRC), a non-governmental organization with general consultative status at the U.N. Human Rights Council has prepared a written statement for the Council’s 21st session that addresses issues of state impunity and  extrajudicial killings. It is long and should be read in full here. Some excerpts follow:

The ALRC urges the Government of Thailand to amend the Criminal Code to account for the crime of disappearance, and, more importantly, to foster a culture within which the state security forces actively work against, rather than encourage, the casual use of extrajudicial violence.

On 25 October 2004, 85 people died during and following protests in Tak Bai district of Narathiwat province…. Under Thai law, when there is a death in custody, a postmortem inquest must be conducted. In May 2009, the inquest ruling noted that, “The causes and circumstances related to the deaths were that they died of suffocation while in custody of officials who were deemed to have performed their duties according to their assigned responsibilities.” In other words, the court recognized that the protestors died while under the protection of state officials, but classified this not as murder but as “duty”. Families of the victims filed a court case arguing that this recourse to “duty” was unconstitutional; both the Criminal Court and the Court of Appeals have refused to accept this case. The recourse to “duty” is far too frequently echoed in postmortem inquest rulings involving deaths in custody in Thailand and the refusal of the courts to accept the case of the families of the victims powerfully illustrates how entrenched and unquestionable this idea is within the security and judicial apparatus.

The ALRC urges the courts to accept this case for review, and calls on the Government of Thailand to carefully examine the practices and policies extant inside the security forces to ensure that “duty” does not stand as justification for inhumane treatment, torture, or murder.

During the clashes and the subsequent government crackdown on the protests by the red-shirted members of the United Democratic Front Against Dictatorship (UDD) in April and May 2010, 94 persons were killed and more than 2000 were injured. A series of investigations have been carried out by different kinds of actors, including a state agency, two state-appointed independent bodies, and a citizen group. With the exception of the citizen group, the People’s Information Centre (PIC), which released its report in late August 2012, the operations and results of the investigations have not yet been made available to the public.

The ALRC calls on the state agency, the DSI, and the two state-appointed independent bodies, the Truth and Reconciliation Commission of Thailand and the National Human Rights Commission of Thailand, to complete their investigations and share the information with the public. The ALRC welcomes the report of the PIC as an important action by citizens in the service of protecting human rights and ending impunity. At the same time, the ALRC would like to highlight the fact that the securing of accountability is not only the responsibility of citizens, but the state must actively work to achieve this end as well. The public release of the reports by the DSI and other agencies is an important component of this work, as is the subsequent prosecution of state officials who used extrajudicial violence during the April-May 2010 crackdown.








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