International rights bodies, local scholars, activists and public figures are joining the growing call for reform of the contentious and often politicised lese majeste law
- Published: 18/09/2011 at 12:00 AM
- Newspaper section: Spectrum
This month several prominent lese majeste cases are going through the courts or are in the public eye, from that of the webmaster of a news site to an activist student and two US citizens. Lese majeste cases have been on the rise since 2005, but of late there has been increasing international and Thai unease with what some activists and rights organisations are calling use of the law to stifle political opposition, suppress freedom of speech and violate human rights.
Article 112 of the Criminal Code allows three to 15 years in jail for "whoever defames, insults or threatens the King, the Queen, the heir to the throne or the regent". This can apply for each offence, and theoretically anyone can make this claim against anyone else; the royal family itself has never brought a charge to court. While other countries also have lese majeste laws, the penalties aren't as severe and the law is better defined.
Related provisions in the 2007 Computer Crime Act in Thailand have also enabled prosecutors to dramatically increase penalties. The law was passed by the post-coup military-backed government to combat hacking but can also be used to prosecute attempts to undermine national security. It is for the latter reason that the law is increasingly being used, and the vagueness of the language means it can be interpreted to prosecute political opponents.
In Reporters Without Borders' international press freedom index, Thailand ranks 153rd out of 178 countries _ below Afghanistan, Colombia, Congo, Nigeria and Pakistan. In 2004 it was a respectable 59th. The steady decline in Thailand's ranking may be partly due to political uncertainty and increasing fear over prosecution under Article 112 and the Computer Crime Act.
WHY CASES HAVE INCREASED
This year, a Thai court sentenced Thanthawut Taweewarodomkul, operator of a red shirt-affiliated website, to 13 years in jail on lese majeste charges. Police also jailed Thai-born American Joe Gordon in part for allegedly posting a link on his blog to a banned biography of the monarch. Webmaster Chiranuch Premchaiporn faces 20 years in prison for failing to remove allegedly offensive reader comments from an online news forum quickly enough. The army levelled lese majeste accusations at 18 core red shirt members and filed a complaint against historian Somsak Jeamteerasakul for allegedly insulting Her Royal Highness Princess Chulabhorn.
"The fact that the law is used more now than ever before in modern Thai history is unfortunate and somewhat baffling," David Streckfuss, an independent scholar and one of the country's most prominent authorities on the lese majeste law, told Spectrum. "The present law's punishment is a product of a military coup in 1976, and represents a remaining vestige of dictatorship rather than the result of some sort of 'social consensus', as some Thai scholars have argued. The maximum penalty is now more than twice as high as under the absolute monarchy and the highest seen anywhere in the world for a century or two."
According to Benjamin Zawacki, Asia researcher at Amnesty International, "Although the lese majeste law has been on the books for decades, during Thailand's ongoing political crisis _ which began in late 2005 _ it has been used more vigorously amidst a worsening climate for political expression.
"Amnesty takes particular issue with the provision of the law that allows any citizen to report another for an alleged violation. The Computer-related Crimes Act of 2007 has also facilitated the meteoric rise in the misuse and abuse of the lese majeste law in Thailand."
A Thai scholar who spoke at a recent Thai studies conference said Article 112 of the Criminal Code "is unjust over-punishment, violates human rights and the clause is too ambiguous", arguing that "it is used to defame political enemies", beginning with its use against Pridi Banomyong after a coup in 1947. After the Oct 6, 1976, massacre, the ultraroyalist government of Tanin Kraivixien increased the penalties for lese majeste, "and it is still used as a political tool", said the scholar. In summary, he added, "Article 112 supports coups."
Mr Streckfuss thinks that discussion of the law should be put in the political context of recent years. "Throughout late 2005 and into the first half of 2006, Thaksin Shinawatra's opponents tried to portray pro-Thaksin forces as 'anti-monarchy' or pushing to 'overthrow the monarchy'," he said. "There was the supposed 'Finland Plan' _ which I believe was later found to have been fabricated _ that leaders of the pro-Thaksin forces had met in Finland and amongst other things supposedly plotted to overthrow the monarchy.
''There has been a consistent tendency to depict discussions of reforming the monarchy _ or even analyses challenging the power structure in Thailand _ as an attempt to overthrow the institution. Such discussion is normal in any democratic constitutional monarchy, but of course is prohibited in the world's few remaining absolute monarchies,'' he said. ''The idea that there is a conspiracy against the monarchy has been used again and again by the powers that be to delegitimise or slander its opponents.''
As an example, he cited the ''mind map'' issued by the Centre for the Resolution of the Emergency Situation last year, which described the contours of a conspiracy. ''Most recently,'' he said, ''it is claimed by the established powers that the conspiracy is now being carried out by academics and other groups calling for reform of the lese majeste law. The charge of lese majeste has become the de facto equivalent of treason. I doubt that any society where the central political discourse has become an exchange of accusations of treason can function. Thai society has been bludgeoned by this charge for five or six years now.''
THE NUMBERS GAME
Government statistics are unclear on how many have been indicted on lese majeste charges. The Office of the Attorney-General says that last year 37 lese majeste cases involving 53 people were being considered by prosecutors. In 2005, there were 18 such cases involving 24 people. In 2000 there was just one.
Statistics from the Office of the Judiciary show that 30 charges of lese majeste came before the lower court in 2006, and it handed down decisions on 21 charges. In 2009, 164 charges came before the lower court, and in 2010 the number was 478 cases, with decisions handed down on 83 charges.
Political Prisoners in Thailand, a rights watch group, estimates there have been more than 300 cases since the 2006 coup.
The Department of Special Investigation (DSI) is currently handling about 20 lese majeste cases and has assigned 80 officials to monitor the internet for subversive content, according to its deputy director, Col Yanaphon Youngyuen.
And according to a Thai group monitoring internet censorship, i-Law, the government blocked around 75,000 websites in 2010 _ 57,000 of them for containing lese majeste content.
CJ Hinke, director of Freedom Against Censorship Thailand, told Spectrum there have been 789 lese majeste prosecutions since 2000. He also estimated that based on Thai government media releases coupled with research by the i-Law Foundation, 609,526 web pages have been blocked in total as of Thursday, with 690 new URLs being blocked every day since ''the rule of law was suspended during emergency rule'' in April last year, ''and not a single webpage has been unblocked since the emergency has been lifted''.
''Police and court statistics compiled by the Division of Information at the Ministry of Foreign Affairs indicate that the number of complaints, charges or decisions peaked in 2009 and dropped off in 2010 and the first half of 2011,'' said Mr Streckfuss. ''The statistics from the Office of the Judiciary suggest that hundreds could be in jail, while those of the Office of the Attorney-General are more modest.
''These different sets of statistics don't include those accused of or tried for violations of the Computer Crime Act, which has been used as a lese majeste-like law since 2007,'' he added. ''I don't believe that anyone knows for sure how many are presently in jail for lese majeste and the Computer Crime Act.''
HOW THE LAW IS IMPLEMENTED
A police complaint of lese majeste was made against the executive board of the Foreign Correspondents' Club of Thailand in mid-2009, for example. A committee appointed by the Abhisit government to look into lese majeste matters reportedly found the complaint wasn't worth pursuing.
Lese majeste laws are difficult for the police to enforce. Other agencies have become increasingly involved, including the DSI, the Internal Security Operations Command and the Information and Communication Technology Ministry.
When asked why the DSI has been taking an increasing role, a former deputy police commissioner who asked not to be named said: ''Lese majeste is, according to Article 112, a criminal law and either the police or the DSI can rightfully make arrests if there's a violation or complaint. Whether to investigate a lese majeste case or not depends on how sufficient the evidence is.
For example, if a red shirt speaker defames the royal family on stage, or there's an insulting slanderous post on a website, it is lese majeste and is executable according to criminal law written in the constitution. But as for lese majeste on forums on websites, the investigation can be difficult and complicated as the source isn't clear.''
According to Mr Hinke, ''the lese majeste agenda is largely driven by the military, so that it doesn't lose its power base and the royal basis for its control''. He estimated a 98% conviction rate for lese majeste charges, ''the result of the judiciary wanting to appear loyal''.
THE SHIFTING WIND
On Aug 31, 112 international scholars signed a letter to Prime Minister Yingluck Shinawatra urging the government to undertake a thorough review of Article 112 and the 2007 Computer Crime Act.
In June and May the Foreign Correspondents' Club of Thailand was a venue for two forums on the issue, and in July the matter was part of a forum at the International Conference for Thai Studies. In the last few months, hundreds of prominent writers, film-makers, lawyers and journalists have signed petitions calling for reform of Article 112. Last Wednesday, Human Rights Watch and the Committee to Protect Journalists called on the Yingluck government to amend the 2007 Computer Crime Act.
Mr Hinke said that ''there are currently seven different mainstream and grass-roots campaigns against Article 112 and the lese majeste provisions of the Computer Crime Act''.
He added, ''HM the King has done a great job, is almost universally liked and the monarchy is positive for Thailand ... but implementation of the law has very little to do with actual lese majeste.''
''The time has come for people to raise their voices,'' said webmaster Chiranuch.
A protest by supporters of historian Mr Somsak included an unusual sight _ people carrying signs with the number ''112'' crossed out.
In 2007, people were much more fearful of criticising the lese majeste law, but recently there has been growing criticism, and Mr Streckfuss attributes this change to a number of factors, beginning with the expansion of political expression on the internet.
''This new kind of public sphere has allowed Thais to access information and perspectives never openly available to Thai society,'' he said.
''It also allows for instantaneous dissemination of those views.''
He also cited a residual political anger. ''For the first time in recent Thai history, there have been a huge number of groups who have reacted negatively to the 2006 coup and are questioning the long entrenched culture of impunity in Thailand.
''In response to this upswell of demands for greater freedom and public accountability, there has been an equally strong movement on the part of what we might call the established powers to crack down on anything deemed as lese majeste.''
With the rash of lese majeste cases in 2008, ''cyber-scouts were released into the internet world to spy on other citizens, substantial security budgets were given to various agencies to root out those deemed as having committed lese majeste,'' he said.
''Now those accused of lese majeste were protest speechmakers, obscure authors of English books, bloggers and common internet users ... on increasingly specious grounds. In the end, beginning in 2009 and continuing to the present, there has been an inevitable backlash against the increasing abuse of the law.''
International rights organisations rarely spoke out against the law until 2009, considering it a Thai matter. Now, according to Mr Zawacki, ''Amnesty International considers the law to go beyond the permissible restrictions on the right to freedom of expression under international law and standards, and in particular the International Covenant on Civil and Political Rights. As Thailand is a state party to this treaty, the lese majeste law places it in breach of its international legal obligations with respect to freedom of expression.
''As currently drafted,'' he said, ''the law is also extraordinarily broad in its definition, scope, application and penalties, causing it to exceed the bounds of restriction on freedom of expression that would otherwise be acceptable under international human rights law.''
Mr Zawacki added that Amnesty International considers anyone imprisoned solely on lese majeste charges to be a political prisoner, ''who should either be charged under an internationally cognisable offence and tried in a trial that meets international standards of due process and fairness, or be released. If the action or statement that led to the lese majeste charges was peaceful in both expression and intent, then Amnesty considers the person to also be a prisoner of conscience.''
Mr Streckfuss echoed the position of Amnesty International, saying ''all persons jailed or held for lese majeste are essentially political prisoners''.
''It doesn't help Thailand internationally. Most importantly, I don't believe the use of the lese majeste law helps the long-term interests of the institution it is supposed to be protecting.
''His Majesty the King himself said as much in 2005.''
He was referring to His Majesty's comment on the eve of his birthday on Dec 4, 2005:
''Under constitutional monarchy, the King can do no wrong. Actually, to say that the King can do no wrong is an insult to the King because why can the King do no wrong? This shows that the King is not human. But the King can do wrong.''
CALLS FOR REFORM
Despite the calls for change, Mr Streckfuss remains pessimistic. ''Having watched some of the new government's announcement of its policies and the debates in parliament that followed, it is difficult to see change coming to the law any time soon. The new opposition played the loyalty-to-the-throne card, so to speak, and insisted the government promise to not interfere in lese majeste case prosecutions. In response, some of the new government's leaders pledged that the lese majeste law will never be changed.''
The Nithrat group or ''Enlightened Jurists'' of Thammasat University's faculty of law have called for the law's amendment and proposed a number of options _ taking the law out of the national security section of the criminal law code, eliminating the minimum sentence and reducing the maximum sentence, adding an exemption clause for those expressing an honest opinion or for the benefit of the public, or requiring a state agency's approval before a complaint of lese majeste can be pursued.
The 112 international scholars _ led by Kevin Hewison, professor of Asian studies at the University of North Carolina at Chapel Hill and a Thai studies expert _ in an open letter called on the Yingluck government ''to review the cases of those already charged and convicted, review the laws as they are currently used, and to release on bail those prisoners currently fighting their cases in the courts''.
Mr Zawacki told Spectrum: ''Amnesty International has recommended that the Royal Thai government suspend implementation of the lese majeste law until _ and if _ it can be brought into compliance with Thailand's international legal obligations. Amnesty has also recommended that all prisoners of conscience detained under the law be released.''
Mr Hinke suggested, ''Subject all ongoing lese majeste cases to independent review. Third-party intermediaries should never be prosecuted.''
On whether the calls for change should come from within Thailand or whether international pressure would help control abuse of the law, Mr Streckfuss was equivocal. ''It's very hard to say in the present political climate in Thailand whether external pressure would help ameliorate the situation or worsen it,'' he said.
''Hopefully the new government will affirm its commitment to human rights and democracy. All victims of any laws that jail people for the peaceful expression of political opinions need the attention of the world. International organisations and the diplomatic community can offer not a solution for Thai society, but a space for constructive dialogue. What comes from that dialogue depends on the choices Thai society as a whole makes. The problem is that it is hard to have a dialogue when the very concept of dialogue is interpreted as yet another instance of treason.''
IN DEFENCE OF ARTICLE 112
Prof Borwornsak Uwanno, above, a fellow of the Royal Institute and secretary-general of King Prajadhipok's Institute, wrote a three-part commentary in April, 2009, in the Bangkok Post, defending Article 112.
"If we believe that no country is right or wrong but that each is democratic in its own way based on its own social, cultural and ethical norms, thereby creating diversity, then we will better and more easily appreciate others without passing judgement on them based on our own standards. The term for this is ethical relativism," he wrote.
"That Belgium, the Netherlands, Norway, Spain, Thailand and other countries consider defamation against their monarchs a more serious offence than defamation against ordinary people is also within the rights of these societies because the cultural and moral norms of the majority of their peoples deem such an offence to be 'harmful' to society."
In Thailand, he continued, "the lese majeste offence means not just harm to the monarch but also to the 'father' of most Thais _ a serious social offence comparable to ingratitude towards one's own father.
"In Thai society, the lese majeste offence has its basis not only in the principles of international law or constitutional law but also in Thai ethics, culture and Buddhist principles which are unique to Thai society. In a similar vein, some Western countries may protect their parliaments through contempt-of-parliament laws [which Thailand does not have], or protect their courts through contempt-of-court laws, while Muslim countries protect their God and faith. Individual freedom of expression thus ends when it comes up against what each society wishes to protect."
In summary, he argued the law is not unjust nor in contravention of human rights: "The three groups of insult and defamation laws in Thailand, including the lese majeste law, are consistent with the principles of international law and constitutional monarchy, as well as with the principle of criminology on criminalisation of acts in accordance with democratic principles. They also place limitations on freedom of expression which reflect the ethical and cultural norms that most Thais adhere to, and which are not inconsistent with the human rights principles enshrined in the United Nations' Universal Declaration of Human Rights."
Jada Wattanasiritham, a member of the board of Siam Commercial Bank, last week defended Article 112 in a conversation with the Bangkok Post.
Mrs Jada argued that the law was revised many times before it was promulgated and, given the complications, changes in constitutional law now would only lower the confidence of people in law enforcement.
Prasong Lertrattanawisuth, left, director of the Isara Institute and former editor-in-chief of Matichon, told the Bangkok Post that opinions concerning the issue are split into three groups _ those who want the law left untouched, those who would like some changes and those who think it should be revoked.
"I think the law should be changed in three areas, including a revision of the maximum penalty of 15 years, a clearer definition of how the law should be enforced and also protection," he said. "Institutions, especially the monarchy, should have a degree of protection too _ even civilians are protected in the case of defamation."
Mr Borwornsak also acknowledged that "certain improvements should be made regarding the enforcement of the law to prevent abuse. The approach used in Norwegian law could be applied [where lese majeste charges may be made only with the consent of the king]. For the third group of cases, which include lese majeste and offences against foreign heads of state, the attorney-general should be the sole authority to file complaints, investigate and press charges, so that accusations will not be as easily made as they are now.
"As for section 112 of the Criminal Code," he concluded, "it should be left as it is."
SOME NOTABLE RECENT CASES
Sulak Sivaraksa
A long-time critic of the lese majeste law, the academic has been charged with violating it at least three times _ in 1984, in a case later withdrawn; in 1991 for attacking military rule, a case he won in 1995; and in 2007 for comments made in a university lecture, a charge that was recently dropped.
Akechai Hongkangwarn
Arrested by police on March 11 and charged under Article 112 for being in possession of 100 illegal VCDs _ believed to be copies of an ABC (Australia) programme _ a CD writer and WikiLeaks documents.
Joe Gordon (Lerpong Wichaikhammat)
Thai-born US citizen arrested on May 26 by the DSI on lese majeste, security and computer crime violations. The DSI says he is the owner of a blog established in the US in 2007 with links to, and translations of, a book by Paul Handley. Bail was denied. He was charged on Aug 18 and remains in Bangkok Remand Prison.
US embassy spokesman Walter Braunohler told Spectrum that the US was "disappointed by the prosecutor's decision to file lese majeste charges against Mr Gordon".
"Consular officers from the US embassy in Bangkok visit Mr Gordon regularly, are communicating with his family, and continue to provide all appropriate consular assistance," he said. "We have raised Mr Gordon's case continuously with senior Thai government officials to urge a fair and prompt response that reflects Mr Gordon's rights as a US citizen and ensures that the freedom of expression is respected."
Anthony Chai
A US citizen first detained on suspicion of lese majeste on May 9, 2006. As reported in last week's Spectrum, Mr Chai last month filed a suit against a Canadian web hosting company, Netfirms, for releasing personal information to the Thai government. Netfirms' disclosures allegedly allowed Thai officials to identify, detain and interrogate Mr Chai, both in Thailand and the US. The suit alleges that the company's conduct violated California state law, as well as Constitutional and international human rights law.
The US embassy wouldn't comment on Mr Chai's case "due to privacy considerations".
Chiranuch Premchaiporn
Arrested on March 6, 2009, and currently on trial, with prosecution witnesses testifying this week and defence witnesses testifying early next month. Ms Chiranuch is the webmaster of Thai news website Prachatai, and was charged with 10 violations of the Computer Crime Act for allegedly not removing anonymous antimonarchy posts on a public forum quickly enough. Ms Chiranuch herself will take the stand on Wednesday.
Eleven British members of parliament signed a motion in support of Ms Chiranuch that stated her case "threatens Thailand's reputation for tolerance of free expression and risks creating a climate of fear".
Last Wednesday she was the first Thai recipient of a Hellman/Hammett grant, administered by Human Rights Watch and given to writers who face political persecution for their work.
Somyos Pruksakasemsuk
Arrested on April 30, reportedly for refusing to reveal the name of a writer of an article in Red Power magazine, of which he was editor. He was charged in July, was refused bail and remains in jail.
Jonathan Head
BBC correspondent in Bangkok has been the subject of three lese majeste complaints. One of these was apparently about an online BBC story that did not place a photograph of HM the King at the top of the page. Head has since transferred to report on Turkey.
Harry Nicolaides
Australian English-language teacher sentenced to six years in jail _ commuted to three years on pleading guilty _ on Jan 19, 2009, for defaming HRH the Crown Prince in a 2005 novel that sold only seven copies. He received a royal pardon on Feb 18, 2009, and was deported to Australia.
Daranee Charnchoengsilpakul (Da Torpedo)
Sentenced on Aug 28 to 18 years in prison on lese majeste charges, six years each for three comments made during a red shirt rally. While the Administrative Court ruled that the closed-door trial was a mistrial, Ms Daranee remains behind bars.
The Bangkok 18
In April, 18 red shirt leaders were summoned by the DSI to face charges of insulting the monarchy and inciting others to disobey the law.
Giles Ji Ungpakorn
A writer on Thai affairs and associate professor of political science at Chulalongkorn University. A lese majeste case against him went to court in February, 2009, and he fled Thailand for the UK the same month, concerned that he wouldn't receive a fair trial. In March, 2009, a Thai court issued a warrant for his arrest, and in November he was accused again for comments made on his blog. He remains abroad.
Norawase Yotpiyasathien
A business administration student who recently graduated from Kasetsart University, arrested last month for comments made on a blog and believed to be one of the youngest ever to face charges of breaking the lese majeste law and the 2007 Computer Crime Act.
Thaksin Shinawatra
In November, 2009, the former prime minister was accused of lese majeste following an interview with The Times. In February, Democrat MP Watchara Petthong filed lese majeste charges against Thaksin, and against Robert Amsterdam and Thanapol Eawsakul for the publication of the Thai version of their White Paper on the violence of April and May, 2010.
Sondhi Limthongkul
A high-profile leader of the PAD, which played a role in bringing down the Thaksin government in the lead-up to the 2006 coup. The media magnate is said to have faced some 30 accusations of lese majeste, and was also subject to an assassination attempt in April, 2009. It has been reported that his trial will begin on Nov 1.
Oliver Jufer
Mr Streckfuss, when asked if there were any non-politicised lese majeste cases, offered the case of Oliver Jufer as a close example: ''Jufer was convicted of defacing portraits of HM the King. That would have been a crime in European constitutional monarchies as well. But the difference is that in Europe in a roughly similar case it resulted in a 400 [16,800 baht] fine. In Thailand, it resulted in something like a 20-year sentence.''
One of the leaked US embassy WikiLeaks cables, titled ''Swiss offer lese majeste survival guide'', indicates that then-US ambassador Ralph Boyce saw this case as an example of how to proceed to achieve a quick resolution if a US citizen were charged with lese majeste. The Swiss government was not openly critical about the charge, and Jufer had his potential 75-year sentence reduced to 10 years by confessing to having anti-monarchy views. He was released following a royal pardon, after serving 13 days.
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