Updated: Lese majeste incompatible with international human rights law

From the United Nations:

The United Nations Special Rapporteur on the promotion of freedom of opinion and expression, David Kaye, today called on the Thai authorities to stop using lèse-majesté provisions as a political tool to stifle critical speech. In Thailand, defaming, insulting or threatening the royal family carries a penalty of three to fifteen years’ imprisonment.

“Public figures, including those exercising the highest political authority, may be subject to criticism, and the fact that some forms of expression are considered to be insulting to a public figure is not sufficient to justify restrictions or penalties,” the expert underlined.

“The lèse-majesté provision of the Thai Criminal Code is incompatible with international human rights law,” Mr. Kaye said, “and this is a concern that I and my predecessors have raised on numerous occasions with the authorities.”

The expert’s call comes as law student activist Jatupat Boonpatararaksa awaits trial for defaming the crown. Mr. Boonpatararaksa is the first person charged with lèse-majesté since the new King, Maha Vajiralongkorn Bodindradebayavarangkun, acceded the throne on 1 December 2016.

On 2 December 2016, Mr. Boonpatararaksa was arrested and charged under the lèse-majesté provision of the Criminal Code and under the Computer Crimes Act, after having shared a BBC news article on the new King and quoted content of the news on his private Facebook page.

Mr. Boonpatararaksa is currently in detention after his bail was revoked by an appeals court on 27 December, reportedly justified by the case’s sensitive matter and on public order and national security grounds. “I concerned about reports that the court hearing on his bail took place behind closed doors, in contradiction to the right to a fair and public hearing,” the Special Rapporteur said.

Earlier this month, on 1 February, his remand was extended for another 10 days. His next appearance before the court to hear whether there will be a new extension or not is on 10 February. No trial date has been confirmed.

In September 2016, the Thai Prime Minister revoked a previous order that granted military tribunals the authority to try lèse-majesté cases. All lèse-majesté acts committed after September 2016 will be tried at civilian courts.

However, actions committed before September 2016 continue to be brought before military tribunals, which have applied harsher penalties on lèse-majesté cases. In 2015, a military tribunal sentenced Phongsak Sribunpeng to 30 years, Ms. Sasiwimol Patomwongfa-ngam to 28 years and Mr. Thiansutham Suttijitseranee to 25 years imprisonment for criticizing the monarchy on Facebook.

“Lesè-majesté provisions have no place in a democratic country. I urge the authorities of Thailand to take steps to revise the country’s Criminal Code and to repeal the law that establishes a justification for criminal prosecution,” the human rights expert stressed.

He let them off the hook a bit. Thailand isn’t a democratic country. It’s a military dictatorship.

Update: Thailand’s military dictatorship’s minions at the Ministry of Foreign Affairs have responded or, as they say, “clarified.” PPT’s “response” in brackets:

With regard to the news release issued by the United Nations’ Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression voicing concerns over the use of the lèse-majesté law, the Ministry of Foreign Affairs would like to clarify as follows:

1. The Thai monarchy has always been a pillar of stability in Thailand [Not accurate. Since 1932, royalists and the palace have consistently destabilized governments]. The Thai sense of identity is closely linked to the monarchy [Palace propaganda], an institution that dates back over 700 years [More palace propaganda and historically inaccurate]. The institution, to this day, continues to play a unifying role and symbolizes the unity of the Thai communities [well, for the royalist elite, certainly]. Enacting appropriate legislation to protect the highly revered institution is a common practice in Thailand as in other nations [Not true].

2. The lèse-majesté law is part of Thailand’s Criminal Code that gives protection to the rights or reputations of Their Majesties the King and Queen, the Heir-apparent, or the Regent in a similar manner that libel law does for commoners to uphold national security and public order [the law has also been used to attack political opponents and protect dead kings, jail fraudsters, manage a royal “divorce” and protect a royal dog]. It is not aimed at curbing people’s rights to freedom of expression [Blatant lie]. Similar protection is provided for the King, Queen and Heir-apparent of other States as well as official representatives thereof as enshrined in article 133 – 134 of Thailand’s Criminal Code [This is an innovation in these kinds of claims. As far as we know, the law has never been used for foreign heads of state]. Cases proceeded under the lèse-majesté law are in no way politically motivated [Blatant lie].

3. While Thailand supports and values freedom of expression, these rights are not absolute and shall be exercised within the boundary of the law in a manner that does not disrupt public order and social harmony or infringe upon others’ rights or reputations, as stipulated in Article 19 (3) of the International Covenant on Civil and Political Rights. [This is accurate] Hence, the application of the lèse-majesté law is not incompatible with international human rights law [The point is that lese majeste is used against political opponents and to restrict them in ways that defy Thai law and constitutions].

4. As with other criminal offences, proceedings on lèse-majesté cases are conducted in accordance with due legal process [This includes secret trials and military courts, all “legal” in the junta’s Thailand]. Those convicted for lèse-majesté are entitled to the same rights as those convicted for other criminal offences, including the right to file an appeal and the right to seek royal pardon [True enough. However, they are routinely denied bail, treated badly in prison, have lawyer access limited and proceedings are dragged out to gain “guilty” pleas].

5. Regarding the legal proceedings against Mr. Jatupat Boonpattararaksa who has been charged under the lèse-majesté law and the Computer Crimes Act, the case is being independently deliberated by the Court of Justice [No court in Thailand is “independent”]. The government is not in a position to intervene in the proceedings while the judiciary exercises its power in accordance with the law. The accused’s bail was granted on 23 December 2016 and was later revoked as he was repeating his offense, thereby violating his bail conditions [Jatuphat is a political opponent and is being framed].

The line in the sand on human rights

There’s an interesting and revealing report at the Bangkok Post. Interesting and significant for the admissions made and revealing of the admission on the limits of human rights. The report draws on a U.N. Human Rights Council report (clicking downloads a large PDF) and the associated Thai government response.

The UN special rapporteur on freedom of expression report is here. (PPT will spend some time on this document over the next few days as it includes information on nearly 60 lese majeste/computer crimes cases, including cases against 11 foreign nationals.)

The Thai government’s response is here.

The admissions made:

Thailand has conceded to issues raised by a UN special rapporteur as alleged malpractice regarding freedom of expression and migrant labour, and to the fatal harassment of human rights defenders.

The admission is in a document included in 108 pages of communications involving special rapporteurs of the United Nations recently made available ahead of the 23rd session of the UN Human Rights Council.

This admission appears to PPT to be a significant advance as an admission could, with the right political will, lead to some policy changes.

The limits:

On page 24, there is a short reply dated Dec 26, 2012 from the Thai government to UN Special Rapporteur on Freedom of Expression Frank La Rue to questions about cases in Thailand.

Thailand replied that the 2007 Constitution of Thailand contains the clause: The King shall be enthroned in a position of revered worship and shall not be violated.

No person shall expose the King to any sort of accusation or action, the official reply from Thailand said.

It is the reply that sets out the “reasons” for limiting freedom of speech related to the monarchy that draws a line in the sand.

While admitting that Article 112 was:

largely applied in a manner and with a frequency which raises some concerns. The severity of the punishments received, the absence of exemptions on constitutional or legal grounds, and the force it exerts over the judicial system adds to the chilling effect on free speech…,

the state defends all of this in the name of protecting a”special” monarchy. It is done with a quasi-religious zeal and rhetoric.

PPT plans more posts on these related reports.

Updated: Freedom of expression

The United Nations Special Rapporteur on Freedom of Expression and Opinion, Frank La Rue is interviewed at the Bangkok Post. Here is one of the questions and his response:

Some people here interpreted your suggestion that Thailand amend Article 112 of the Criminal Code and the Computer Crime Act [governing lese majeste] as the United Nations interfering in our domestic political affairs. What would you say to that?

I made a statement regarding the lese majeste legislation in Thailand. And I stand by [my recommendation] to the Human Rights Commission. This is not an intervention. Human rights is a universal issue for all modern, civilised and democratic countries, and only those which want to move backward to an undemocratic regime will reject them.

The beauty of human rights is that it’s exactly the same standard for every country _ there’s no special treatment because human dignity is the same across the world.

There is no reason why you would have an argument of that nature unless people want to avoid responsibility to [uphold] the standard.

Update: There’s another account of la Rue’s interview at The Nation.

UN expert recommends amendment of lese majeste laws

PPT reproduces this press release in full:

GENEVA (Oct 10, 2011) – The United Nations Special Rapporteur on the right to freedom of opinion and expression, Frank La Rue, today urged the Government of Thailand to amend its laws on lèse majesté. According to Section 112 of the Thai penal code, ‘whoever defames, insults or threatens the King, the Queen, the Heir to the throne or the Regent shall be punished with imprisonment of three to fifteen years.’

“I urge Thailand to hold broad-based public consultations to amend section 112 of the penal code and the 2007 Computer Crimes Act so that they are in conformity with the country’s international human rights obligations,” the expert said. “The recent spike in lèse majesté cases pursued by the police and the courts shows the urgency to amend them.”

The Computer Crimes Act has also been used as a de facto lèse majesté law, which can carry a sentence of up to five years of imprisonment for any views expressed via the Internet in relation to the monarchy deemed to be a threat to national security.

“The threat of a long prison sentence and vagueness of what kinds of expression constitute defamation, insult, or threat to the monarchy, encourage self-censorship and stifle important debates on matters of public interest, thus putting in jeopardy the right to freedom of opinion and expression,” La Rue said. “This is exacerbated by the fact that the charges can be brought by private individuals and trials are often closed to the public.”

The Special Rapporteur highlighted that Thailand has been a party to the International Covenant on Civil and Political Rights since 1996, which contains legally binding human rights obligations, including the obligation to fully guarantee the right of all individuals to seek, receive and impart information and ideas of all kinds.

La Rue acknowledged that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason, under certain exceptional circumstances, the right may be limited, including to protect the reputation of individuals and to protect national security.

However, to prevent any abuse of this exceptional rule for purposes beyond the intended aim, any law that limits the right to freedom of expression must be clear and unambiguous regarding the specific type of expression that is prohibited, and proven to be necessary and proportionate for the intended purposes.

“The Thai penal code and the Computer Crimes Act do not meet these criteria. The laws are vague and overly broad, and the harsh criminal sanctions are neither necessary nor proportionate to protect the monarchy or national security,” the expert noted.

The Special Rapporteur also raised concerns over the 2007 Computer Crimes Act and its use by the Ministry of Information and Communication Technology, in cooperation with the Royal Thai Army, to reportedly block hundreds of thousands of websites that contain commentary on the Thai monarchy.

“I have raised my concerns* regarding the incompatibility of lèse majesté laws with Thailand’s international human rights obligations over the course of my mandate,” said La Rue, noting that concerns regarding lèse majesté laws were also raised during the consideration of the situation of human rights in Thailand through the UN Universal Periodic Review in Geneva on Friday.

“In this regard, I am willing to engage constructively with the Government of Thailand, as well as the Law Reform Commission, whose task is, among other things, to propose reforms to harmonize Thailand’s national laws with international human rights standards,” said the expert.

(*) For the most recent lèse majesté cases brought to the attention of the Government of Thailand by the Special Rapporteur, see A/HRC/17/27/Add.1, paras.2114-2156.

Somyos’ case submited to UN Special Rapporteur on freedom of expression and opinion

PPT has received the submission made to the United Nations Special Rapporteur on Freedom of Expression and Opinion on behalf of  Somyos Prueksakasemsuk, who has been incarcerated without bail on lese majeste charges since 30 April 2011. We reproduce the substantive part of that submission below.

PPT has recently updated Somyos’ information at his Pending Cases page to include the full submission and the prosecutor’s charges against Somyos, with the latter being only in Thai.

Mr. Somyot Preuksakasemsuk
Magazine Editor Charged with Lese Majeste Law and Denied Bail
(Thailand)

1. Allegation regarding a person or persons:

On 30 April, Mr. Somyot Preuksakasemsuk, 50, an editor of Voice of Taksin/Red Power magazine and a prominent labour activist, was arrested for allegedly “insulting, defaming or threatening the king, the queen, the heir and the regent”, under the lèse-majesté law or Section 112 in Thai Criminal Code. He has been arbitrarily detained and denied his right to bail since then.

Somyot Pruksakasemsuk is known for his tirelessly active involvement in the work of supporting the empowerment of the workers movement and the establishment of democratic trade unionism in Thailand. He, in 2007, began to edit the “Voice of Taksin” magazine, a political publication opposed to the Abhisit Vejajiva’s government.

Somyot is the chair of Union of Democratic Labour Alliance, the leader of 24th June democracy group and the editor of Red power magazine. He has active role in red shirts movement in the campaign to repeal the lese majeste law.

Somyot was earlier detained in May – June 2010 under the Emergency Decree on the Public Administration in Emergency Situations for 19 days as an editor of the Voice of Taksin magazine. After he was released, he changed the name of the magazine to Red Power.

2. Allegation regarding a medium of communication:

Somyot was arrested on 30 April 2011 and was subsequently charged under lese majeste law after arbitrarily detained without bail for 72 days (on 22 July 2011) for being an editor of Voice of Taksin.

On 22 July 2011, the public prosecutor officially charged Mr. Somyot under two accounts of lese majeste law from two articles that appeared in Voice of Taksin magazine.

He is facing the maximum of 30 years in jail if found guilty.

On February and March 2010, Voice of Taksin published two satire political articles by a writer under the name of Jit Polajan. The two articles talk about two political incidents in Thailand namely on:

1) October 1973 incident, which is a democratic uprising in Thailand when military dictator led by Field Marshal Thanom Kittikajorn, were ousted after he ordered the crackdown on the protesters which resulted in dozens people killed.

2) Political violence before and after the 19 October 2006 coup d’etat.

The writer criticized a fictional character under the name of “Luang Naluebarn”. The public prosecutor argued that the writer refers to HM Bhumibol Adulyadej, the King of Thailand.

The public prosecutor claimed that as an editor, Somyot needs to be responsible for the article although he did not write it himself.

3. Information regarding the alleged perpetrators:

24 May 2010, after the military crackdown which resulted in the deaths of 92 people, most of them civilians, Mr. Somyot Preuksakasemsuk was arrested under Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005) by the Centre for the Resolution of  Emergency Situation (CRES), a military body set up after the declaration of the decree. CRES held Mr. Somyot Pruksakasemsuk in custody at the Royal Thai Army Cavalry Center, Saraburi (Adisorn Army Camp) and he was released on 13 June 2010.

He was accused that he is editor of Voice of Taksin magazine which CRES claimed that the magazine threatened national security by provoking red shirts against the Abhisit Vejajiva government.

25 April 2011, He held the press conference about the campaign to abolish lese majeste law.

30 April 2011, He was arrested under an arrest warrant on lèse-majesté complaint by the DSI because of the two articles in Voice of Taksin. But Somyot said that this detention is probably the result of his role in having recently launched a campaign to collect 10,000 signatures to repeal lese majeste law, as he heard investigators saying that if he had not done that, he would not have been arrested. The campaign was done in a peaceful manner according to the citizens’ rights under the 2007 Constitution of Thailand.

It is known later that his arrest warrant was issued by the DSI since 12 February 2010. The DSI claimed that they already release two summonses for his case but Mr.Somyot never reported himself to the police. But Mr.Somyot said that he never receives any summon from the DSI before.

He was taken into the custody by the Department of Special Investigation (DSI) at the border in Aranyaprathet, in the eastern province of Sa Kaeo, as he was trying to cross into Cambodia. The DSI alleged that Mr.Somyot was attempting to escape but Mr.Somyot said that this is a part of his regular activities to raise fund supporting the 24th June Democracy group, a network of political activists, which he is a leader. When he was arrested, it was already the fourth time for him to cross Thai-Cambodia border to hold similar activities.

Bangkok Post quoted a police officer as saying the court granted a request from the DSI to hold him for ten days so that he could not “tamper with the evidence against him.”

2 May 2011, the Criminal Court denied his bail request, citing that his alleged offences affected national security and the revered monarchy, which carried severe punishment, and that he might flee, as he had been arrested while trying to go abroad.

22 July 2011, the public prosecutor pressed two charges under lese majeste against Somyot for the two articles which appeared in Voice of Taksin. Somyot asked for the right to bail to the court once again for the fourth times, but was denied. The court gave the same reason in denying his bail saying that the charge is severe and it effects the feelings of the public as it deals with the monarchy and alleged that Somyot might escape if he
is granted bail.

4. Information related to State actions

Somyot was arrested at Thai-Cambodia border by immigration police but the case has been taken under responsibility of The Department of Special Investigation (DSI) regarding lèse-majesté law which states that “Whoever defames, insults or threatens the King, the Queen, the Heir apparent or the Regent shall be punished with imprisonment of three years to fifteen years.”.

On 10 May 2011, Dr Niran Pithakwatchara, the chair of sub-committee of civil and political rights of National Human Rights Commission visited Somyot in the Central Bangkok Remand Prison. Niran gave the interview that he visited Somyot for fact finding in terms of unfair lèse-majesté enforcement after he got complaints from academic and political campaign groups. He also said that the sub-committee agreed bailing out is the basic rights of detainee but the sub-committee need to find the fact about investigation process of the DSI.

After his detention for 72 days, on 22 July 2011, the public prosecutor decided to press charge on Mr. Somyot on lese majeste law for two accounts based upon the two articles in Voice of Taksin as an editor of the magazine.

5. Information on the source of the communications:

Organisation : Freedom of Expression Documentation Center, iLaw
Address : 409 Pracharatbumpen 14 Rd., Huaykwang, Bangkok 10320
Phone number : +66 (0) 2276 3676
Email : ilaw@ilaw.or.th