Thailand's Lese Majeste Erodes the Judiciary | Asia Sentinel
Kevin Hewison, 06 February 2013
Those 'protecting' the monarchy, are undermining the legal system
Thailand's repeated use of its draconian lese majeste and computer
crimes laws to "protect" its monarchy is also causing serious damage to
its judicial system.
Since late December, Thai courts have sentenced three more people to
jail terms under Article 112 of the Criminal Code (the lese majeste law)
and the closely related Computer Crimes Act. All were identified as
opponents of the previous government led by Abhisit Vejjajiva and the
Democrat Party. Seventeen others are known to have been sentenced under
these laws since the 2006 military coup. This sentencing has been
ferocious, with some receiving 15 and 20 years. Almost all of those
convicted were identified as opponents of the coup and military-backed
governments.
Before the coup that overthrew Prime Minister Thaksin Shinawatra, the
lese majeste law was used relatively infrequently. Spikes in its use
have coincided with the right-wing and military governments that litter
Thailand's political history.
The period of political conflict associated with the Abhisit government,
from late 2008 to mid-2011, saw the lese majeste law used to gag a
vociferous Red Shirt opposition media and political movement. The
Abhisit government repeatedly proclaimed that its censorship and jailing
of political opponents was to prevent republicans bringing down the
monarchy. It produced little evidence but the jails were filled with
political prisoners.
While the Yingluck Shinawatra government, elected in mid-2011, has
reduced the use of this politicized law, cases continue to drag through
the courts, with the government's royalist opponents having declared
lese majeste reform an attack on the monarchy itself.
Many royalists assert that Article 112 is the foundation of protection
for the monarchy and, indeed, for the Thai state itself. This conviction
blinds them to the fact that the use of this draconian law and the
continuing trials are undermining another institution that is vital for
the state: the judiciary.
Historically, while the judiciary has been politically supine, it has
not been identified as a politically activist institution. However, that
changed when the king intervened following an election shambles in
April 2006 to urge the judiciary to sort out the political mess. That
mess revolved around royalist agitation for Thaksin's elected government
to be thrown out. To be sure, the king had long taken an interest in
the judiciary, yet this was a call for a judicial political
intervention. Since the military coup, the king has repeatedly urged the
judiciary to remain activist.
In the period following the coup, the judiciary was first used to target
Thaksin, his family and his parties with myriad legal cases. But it is
lese majeste that has become defining for the courts. In order to
"protect" the monarchy, and the system of political and economic power
associated with it, the judiciary has responded with considerable gusto.
Increasingly, though, foreign observers and Thai academics and
activists are expressing concern at the bizarre legal calisthenics
demonstrated by the courts.
Article 112 declares that anyone who defames, insults or threatens the
king, the queen, the crown prince or the regent may be jailed. In two
recent cases, one activist was convicted not for what he said at a
demonstration, but for what the court decided he really wanted to say
before he censored himself by throwing his hand across his mouth.
Another journalist and activist was convicted for publishing a critical
account of politics that the court interpreted as being about the king,
even though he was not mentioned by the author. The author himself has
never been charged even though he is known.
In an earlier case, a sickly old man was sentenced to 20 years for
sending allegedly threatening phone messages about the queen. While the
prosecution could not prove the accused sent these messages, neither
could the accused prove he didn't send them. He was convicted and died
in prison.
The list of curious convictions is long. The web master of a popular web
board was convicted for not removing allegedly insulting posts "quickly
enough" in amongst thousands of posts. An American citizen of Thai
ethnicity was convicted for posting Thai translations of an academic
book about the king on the web. This was a legal activity in Colorado,
but when the man was visiting Thailand, he was jailed.
Decisions that seem to mock the legal process and practice and rules of
evidence are damaging for the judiciary. Perhaps most damaging, however,
has been the Constitutional Court's decisions when Article 112 has been
challenged. These interpretations have been virtually inexplicable in
legal terms.
In one case, when a lese majeste trial was conducted in a closed court,
clearly in contravention of constitutional guarantees on the right to a
public trial, the Constitutional Court managed to conjure a reading that
made a closed court legal. When others challenged the law, claiming
that it contradicted provisions of freedom of the media and of
expression, the same court ruled that protecting the monarchy and the
existing system of government overrode these constitutional rights.
Article 112 rides roughshod over other basic rights. Bail is regularly
refused for those charged with lese majeste, giving the impression that
the defendants are considered guilty before they are convicted. That
lese majeste detainees are usually shackled, chained and sometimes caged
is further evidence for this conclusion. When lese majeste judgments
are criticized, court officials threaten legal action.
In short, Article 112 of the criminal code is allocated a legal position
that relegates the nation's basic law to a residual status. When the
courts make unashamedly politicized decisions in lese majeste cases, the
foundations of the rule of law are undermined. When there is no
equality before the law and arbitrary judgments are made, then the
legitimacy of the judiciary is called into question. Thailand's judges,
by elevating Article 112 above all other laws, are threatening the
future of the country's democracy.
(Kevin Hewison is Weldon E. Thornton Distinguished Professor in
Asian Studies at the University of North Carolina at Chapel Hill)
Showing posts with label Article 112. Show all posts
Showing posts with label Article 112. Show all posts
Wednesday, February 6, 2013
Tuesday, October 2, 2012
Stricter Web Regulation in Southeast Asia | Prachatai English
Stricter Web Regulation in Southeast Asia | Prachatai English
Mong Palatino, Global Voices Onlin, October 2, 2012
While Southeast Asian governments are enhancing the delivery of online services for the benefit of their citizens, they are also instituting tougher internet regulations which many analysts believe could be used to curtail media freedom.
This post is a summary of recent Global Voices articles which discussed several controversial internet regulation policies in the region.
In Cambodia, the government is enforcing a circular drafted earlier this year which requires internet cafes to set up surveillance cameras and to register callers. It’s supposedly a crime prevention measure but critics have argued that it violates privacy rights.
In Singapore, the proposed Code of Conduct for bloggers which didn’t get a favorable response from the local internet community was finally discarded by the government in favor of a Media Literacy Council. Established last August 1, the council is tasked to promote public education on media literacy and cyber wellness. But critics have questioned the lack of transparency in appointing the members of the council which is seen by some as another internet censorship tool.
Andrew Loh reminds the Singaporean government that netizens or bloggers should not be viewed as troublemakers:
Recently, the Philippines enacted the Anti-Cybercrime Law which aims to prevent the cyberspace from degenerating into a ‘lawless realm.’ But the law was described as a threat to media freedom by journalists who protested the last-minute inclusion of libel in the law.
Lawyer JGBernasSJ Blogs mentions the ‘frightening’ provisions of the law:
Like the Philippines, Malaysia has introduced amendments in the law which could curtail internet freedom. Under section 114A of the revised Evidence Act of 1950, law enforcement authorities are able to identify the persons who should be made accountable for uploading or publishing content in the internet. Media freedom advocates have warned that the amendment could force online writers to resort to self-censorship and web moderators could disallow critical comments in order to avoid prosecution and harassment suits.
The Lee & Chong Team explains how the amendment can affect ordinary internet users:
The Philippines and Malaysia may have been inspired by Thailand’s experience which has gained notoriety for using restrictive laws to punish government critics. Article 112 of Thailand’s criminal code is often described as the world’s harshest Lese Majeste (anti-royal insult) law. The controversial law is often invoked to censor web content and shut down websites. Global Voices conducted an interview with a former member of the police committee that handles Lese Majeste cases.
Elsewhere, Vietnam has recently convicted three bloggers accused of spreading anti-government propaganda. Earlier, the Prime Minister has openly criticized some opposition-leaning blogs whom he accused of fomenting disunity in the country.
Governments in the region have justified the imposition of harsh web policies ostensibly to protect the rights of ordinary internet users and uphold public morality. The new policies were met with public opposition but so far the governments have remained firm in implementing the new internet laws.
###
This article by Mong Palatino was originally published by Global Voices Online, a website that translates and reports on blogs from around the world.
Mong Palatino, Global Voices Onlin, October 2, 2012
While Southeast Asian governments are enhancing the delivery of online services for the benefit of their citizens, they are also instituting tougher internet regulations which many analysts believe could be used to curtail media freedom.
This post is a summary of recent Global Voices articles which discussed several controversial internet regulation policies in the region.
In Cambodia, the government is enforcing a circular drafted earlier this year which requires internet cafes to set up surveillance cameras and to register callers. It’s supposedly a crime prevention measure but critics have argued that it violates privacy rights.
In Singapore, the proposed Code of Conduct for bloggers which didn’t get a favorable response from the local internet community was finally discarded by the government in favor of a Media Literacy Council. Established last August 1, the council is tasked to promote public education on media literacy and cyber wellness. But critics have questioned the lack of transparency in appointing the members of the council which is seen by some as another internet censorship tool.
Andrew Loh reminds the Singaporean government that netizens or bloggers should not be viewed as troublemakers:
"The problem is not with the Internet,
or its practitioners. The problem is not with bloggers or, as the
Government like to call them, “netizens”. It is not a problem with those
who are actually active online, as opposed to those who sit in their
comfortable offices tucked somewhere in some unknown places dictating
what and how the online landscape should look like.
Nah, the problem is with a Government which still wields much control, and which has little patience for messiness, for diversity, for spontaneity and indeed for robust debates and disagreements."
Nah, the problem is with a Government which still wields much control, and which has little patience for messiness, for diversity, for spontaneity and indeed for robust debates and disagreements."
Recently, the Philippines enacted the Anti-Cybercrime Law which aims to prevent the cyberspace from degenerating into a ‘lawless realm.’ But the law was described as a threat to media freedom by journalists who protested the last-minute inclusion of libel in the law.
Lawyer JGBernasSJ Blogs mentions the ‘frightening’ provisions of the law:
"Libel has been decriminalized in
other civilized jurisdictions. Our legislature, instead, will throw us
back to the dark ages by imposing a higher penalty for libel. In effect,
advance in communication technology is being treated not as a boon but
as bane."
Like the Philippines, Malaysia has introduced amendments in the law which could curtail internet freedom. Under section 114A of the revised Evidence Act of 1950, law enforcement authorities are able to identify the persons who should be made accountable for uploading or publishing content in the internet. Media freedom advocates have warned that the amendment could force online writers to resort to self-censorship and web moderators could disallow critical comments in order to avoid prosecution and harassment suits.
The Lee & Chong Team explains how the amendment can affect ordinary internet users:
"This amendment will create troubles
for the public. Everybody is using the Internet daily and with this new
amendment, the public has to change the password for the network service
and also social network site frequently to avoid being misuse by other
people. Besides that, the café or restaurant that used to provide free
wifi service may no longer provide the free wifi service to their
customer. This will indirectly affect the business of the restaurant or
café"
The Philippines and Malaysia may have been inspired by Thailand’s experience which has gained notoriety for using restrictive laws to punish government critics. Article 112 of Thailand’s criminal code is often described as the world’s harshest Lese Majeste (anti-royal insult) law. The controversial law is often invoked to censor web content and shut down websites. Global Voices conducted an interview with a former member of the police committee that handles Lese Majeste cases.
Elsewhere, Vietnam has recently convicted three bloggers accused of spreading anti-government propaganda. Earlier, the Prime Minister has openly criticized some opposition-leaning blogs whom he accused of fomenting disunity in the country.
Governments in the region have justified the imposition of harsh web policies ostensibly to protect the rights of ordinary internet users and uphold public morality. The new policies were met with public opposition but so far the governments have remained firm in implementing the new internet laws.
###
This article by Mong Palatino was originally published by Global Voices Online, a website that translates and reports on blogs from around the world.
Friday, September 21, 2012
Protesters rally for release of lese majeste prisoners | The Nation Thailand
Protesters rally for release of lese majeste prisoners | The Nation Thailand
Pravit Rojanaphruk, The Nation, September 20, 2012
Twenty opponents of the lese majeste law held a 112-minute vigil outside the Criminal Court yesterday to condemn the postponement of lese majeste detainee Somyos Prueksakasemsuk's sentencing. The verdict has been postponed to December 19.
The protesters wore black eye masks reading "release political prisoners", while one placard read "justice delayed is justice denied".
Photo by Prainn Rakthai
Somyos has been detained for 17 months now and his bail request denied 11 times.
Inside the court yesterday, another lese majeste and Computer Crimes Act detainee, 41-year-old Surapak Phuchaisaeng, became the first such prisoner to be prosecuted and tried under the Yingluck Shinawatra administration.
Surapak, whose trial was in its second day yesterday, is accused of being behind a Facebook page with a name that is deemed defamatory to the King. "I shall rule through…" is part of the title of the account, which cannot be revealed in its entirety by The Nation for fear of violating the lese majeste law.
Surapak, who was arrested on September 2 last year, told The Nation that it is "disgusting" that he has to wear shackles and prisoners' garb even though no concrete evidence has been produced linking him to the Facebook page, which is still active even though he is in prison. His bail request has been denied about half a dozen times now.
"Think about it. This is Thailand! The justice process never protects the people, only the elite," Surapak said as prosecution witness Pol Major Niti Inthurak, an officer at the Computer Crimes unit, told the court that it was not the police force's job to trace the suspect's IP address.
Surapak, who hails from Nong Khai province and is a computer programmer, said he had lost lots of job opportunities while in prison, adding that prosecutors would never be able to prove that he was linked to the Facebook account.
He is scheduled to testify in court tomorrow.
Pravit Rojanaphruk, The Nation, September 20, 2012
Twenty opponents of the lese majeste law held a 112-minute vigil outside the Criminal Court yesterday to condemn the postponement of lese majeste detainee Somyos Prueksakasemsuk's sentencing. The verdict has been postponed to December 19.
The protesters wore black eye masks reading "release political prisoners", while one placard read "justice delayed is justice denied".
Photo by Prainn Rakthai
Somyos has been detained for 17 months now and his bail request denied 11 times.
Inside the court yesterday, another lese majeste and Computer Crimes Act detainee, 41-year-old Surapak Phuchaisaeng, became the first such prisoner to be prosecuted and tried under the Yingluck Shinawatra administration.
Surapak, whose trial was in its second day yesterday, is accused of being behind a Facebook page with a name that is deemed defamatory to the King. "I shall rule through…" is part of the title of the account, which cannot be revealed in its entirety by The Nation for fear of violating the lese majeste law.
Surapak, who was arrested on September 2 last year, told The Nation that it is "disgusting" that he has to wear shackles and prisoners' garb even though no concrete evidence has been produced linking him to the Facebook page, which is still active even though he is in prison. His bail request has been denied about half a dozen times now.
"Think about it. This is Thailand! The justice process never protects the people, only the elite," Surapak said as prosecution witness Pol Major Niti Inthurak, an officer at the Computer Crimes unit, told the court that it was not the police force's job to trace the suspect's IP address.
Surapak, who hails from Nong Khai province and is a computer programmer, said he had lost lots of job opportunities while in prison, adding that prosecutors would never be able to prove that he was linked to the Facebook account.
He is scheduled to testify in court tomorrow.
Free Somyot Now | Prachatai English
Free Somyot Now | Prachatai English
September 19, 2012
Human rights and labour organizations today urge that magazine editor and human rights defender Somyot Prueksakasemsuk be immediately released from 17-month pre-trial detention. If convicted, he faces up to 30 years in prison under Article 112 of the Criminal Code (the lèse-majesté law) for the publication of two articles deemed insulting to the monarchy. The group further called on the Thai authorities to uphold international standards of freedom of expression, and to stop using Article 112 and arbitrary detention to criminalize or restrict free speech.
The outcome of Somyot’s trial is a litmus test of Thailand’s commitment to protect the rights to freedom of opinion and expression, the group said
Somyot has been held in prison since his arrest in April 2011, five days after he launched a petition campaign to collect 10,000 signatures required for a parliamentary review of lèse-majesté law. Lengthy pre-trial detention of Somyot clearly violates Thailand’s obligations to refrain from arbitrary detention.
On 18 September, the Thai Criminal Court cancelled a court hearing in his case scheduled for 19 September, prolonging his pre-trial detention indefinitely. The Criminal Court did not provide reasons for the cancellation or a new date for the hearing.
Background
Authorities have turned down Somyot’s eleven requests for release on bail. In denying him provisional release, the court has not provided adequate justifications, as required by Section 40(7) the Constitution and Section 107 of the Criminal Procedure Code, which restrict pre-trial detention to exceptional circumstances, and by the International Covenant on Civil Political Rights (ICCPR), which Thailand has ratified.
During the past two years, Thai courts have repeatedly denied bail to alleged lèse-majesté offenders. The UN Human Rights Committee, which oversees compliance of States with the ICCPR, has reminded States that pre-trial detention may, in itself, be a violation of the rights to liberty and presumption of innocence.
Thailand’s lèse-majesté law prohibits any word or act, which “defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent”. The law overrides the Thai constitution and places the country in contravention of its international legal obligations to uphold international standards of freedom of expression. Thai civil society groups, families of those prosecuted under the lèse-majesté law, and United Nations human rights experts have repeatedly called for a public debate on reform of the lèse-majesté law. When Thailand’s human rights record was examined in October 2011 during the Universal Periodic Review of the UN Human Rights Council, its member states addressed more than a dozen recommendations to amend or repeal both the lèse-majesté law and the 2007 Computer Crimes Act that criminalizes online defamation under the same provision. Four of the alleged lèse-majesté offenders, including Somyot, have pending requests to the Constitutional Court to rule on the constitutionality of Article 112. On 19 September, Somyot was expected to learn if the Constitutional Court had ruled on whether Thailand’s lèse-majesté law complies with guarantees of freedom of expression and the press in the 2007 Constitution.
The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression “reiterate[d] the call to all States to decriminalize defamation” in his report (A/HRC/17/27) to the UN Human Right Council in May 2011. The UN Declaration on Human Rights Defenders guarantees the right “[t]o submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may impede the realization of human rights.” Thailand has increasingly criminalized writers and editors of publications that carry articles deemed offensive to the monarchy.
September 19, 2012
Human rights and labour organizations today urge that magazine editor and human rights defender Somyot Prueksakasemsuk be immediately released from 17-month pre-trial detention. If convicted, he faces up to 30 years in prison under Article 112 of the Criminal Code (the lèse-majesté law) for the publication of two articles deemed insulting to the monarchy. The group further called on the Thai authorities to uphold international standards of freedom of expression, and to stop using Article 112 and arbitrary detention to criminalize or restrict free speech.
The outcome of Somyot’s trial is a litmus test of Thailand’s commitment to protect the rights to freedom of opinion and expression, the group said
Somyot has been held in prison since his arrest in April 2011, five days after he launched a petition campaign to collect 10,000 signatures required for a parliamentary review of lèse-majesté law. Lengthy pre-trial detention of Somyot clearly violates Thailand’s obligations to refrain from arbitrary detention.
On 18 September, the Thai Criminal Court cancelled a court hearing in his case scheduled for 19 September, prolonging his pre-trial detention indefinitely. The Criminal Court did not provide reasons for the cancellation or a new date for the hearing.
Background
Authorities have turned down Somyot’s eleven requests for release on bail. In denying him provisional release, the court has not provided adequate justifications, as required by Section 40(7) the Constitution and Section 107 of the Criminal Procedure Code, which restrict pre-trial detention to exceptional circumstances, and by the International Covenant on Civil Political Rights (ICCPR), which Thailand has ratified.
During the past two years, Thai courts have repeatedly denied bail to alleged lèse-majesté offenders. The UN Human Rights Committee, which oversees compliance of States with the ICCPR, has reminded States that pre-trial detention may, in itself, be a violation of the rights to liberty and presumption of innocence.
Thailand’s lèse-majesté law prohibits any word or act, which “defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent”. The law overrides the Thai constitution and places the country in contravention of its international legal obligations to uphold international standards of freedom of expression. Thai civil society groups, families of those prosecuted under the lèse-majesté law, and United Nations human rights experts have repeatedly called for a public debate on reform of the lèse-majesté law. When Thailand’s human rights record was examined in October 2011 during the Universal Periodic Review of the UN Human Rights Council, its member states addressed more than a dozen recommendations to amend or repeal both the lèse-majesté law and the 2007 Computer Crimes Act that criminalizes online defamation under the same provision. Four of the alleged lèse-majesté offenders, including Somyot, have pending requests to the Constitutional Court to rule on the constitutionality of Article 112. On 19 September, Somyot was expected to learn if the Constitutional Court had ruled on whether Thailand’s lèse-majesté law complies with guarantees of freedom of expression and the press in the 2007 Constitution.
The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression “reiterate[d] the call to all States to decriminalize defamation” in his report (A/HRC/17/27) to the UN Human Right Council in May 2011. The UN Declaration on Human Rights Defenders guarantees the right “[t]o submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may impede the realization of human rights.” Thailand has increasingly criminalized writers and editors of publications that carry articles deemed offensive to the monarchy.
Wednesday, August 29, 2012
Two Thai lèse majesté convicts released | prachatai.com
Two Thai lèse majesté convicts released | prachatai.com
prachatai, August 29, 2012
On 24 Aug, Warawut Thanangkorn, aka Suchart Nakbangsai, and Suriyan Kokpuey were released from Bangkok Remand Prison under the 2012 Royal Decree for Royal Pardon on the occasion of HM the Queen’s birthday on 12 Aug.
Warawut, an anti-coup activist, was sentenced to 6 years’ imprisonment, which was reduced by half due to his guilty plea. He was imprisoned for about one year and 10 months.
Warawut
Suriyan and his parents
Other people who also came to greet the two released prisoners
included Warawut’s elder brother, Chairwoman of the United Front for
Democracy against Dictatorship Thida Thawornsate and her husband Weng
Tojirakan (a red shirt leader and Pheu Thai MP), Chulalongkorn
University lecturer Suda Rangkuphan and some 40 red shirts. Reporters
from various news organizations were also present.
The pardoned prisoners were released in groups about 15 minutes apart, about 30 in each group. A total of 304 prisoners were released on that day.
Warawut and Suriyan were released in the second group at about 9.30 am. They came out and were met with the sound of greetings and were given garlands and flowers.
After his release, Warawut waited to visit other political prisoners still imprisoned there and ordered food for them, while Suriyan and his parents went to Lak Si Prison to visit political prisoners there.
Warawut told reporters that he would hold a talk show on 3 Nov to share the experiences of his anti-coup activities, prosecution and life in prison, with tickets priced at 112 and 2,000 baht.
prachatai, August 29, 2012
On 24 Aug, Warawut Thanangkorn, aka Suchart Nakbangsai, and Suriyan Kokpuey were released from Bangkok Remand Prison under the 2012 Royal Decree for Royal Pardon on the occasion of HM the Queen’s birthday on 12 Aug.
Warawut, an anti-coup activist, was sentenced to 6 years’ imprisonment, which was reduced by half due to his guilty plea. He was imprisoned for about one year and 10 months.
Warawut
Suriyan, a shoe repairer, was sentenced to 6 years
and one month in prison, and the jail term was also halved due to his
guilty plea. He was imprisoned for about one year and 11 months.
Suriyan and his parents
Suriyan’s parents Suwit and Surin arrived at the
prison at 6am in anticipation of their son’s release, after having been
disappointed the previous day due to a delay caused by bureaucratic
paperwork.
The pardoned prisoners were released in groups about 15 minutes apart, about 30 in each group. A total of 304 prisoners were released on that day.
Warawut and Suriyan were released in the second group at about 9.30 am. They came out and were met with the sound of greetings and were given garlands and flowers.
After his release, Warawut waited to visit other political prisoners still imprisoned there and ordered food for them, while Suriyan and his parents went to Lak Si Prison to visit political prisoners there.
Warawut told reporters that he would hold a talk show on 3 Nov to share the experiences of his anti-coup activities, prosecution and life in prison, with tickets priced at 112 and 2,000 baht.
Warawut Thanangkorn, having been released a few days before the funeral
Saturday, August 25, 2012
German expert's statement on SMS sender identification in Amphon's case | prachatai.com
German expert's statement on SMS sender identification in Amphon's case | prachatai.com
prachatai.com, August 25, 2012
111 Soi Sitthichon Samsennork Huaykhwang
Bangkok 10310
Thailand
Dr. Karsten Nohl
Chief Scientist
nohl@srlabs.de
+49-3089392996
Berlin, January 30th 2012
Expert statement on SMS sender identification
To whom it may concern:
Security Research Labs is a risk management think tank in Berlin, Germany that advises European telecommunication network operators and governments in mitigating risks arising from cell phone technology.
We were asked to provide a subject matter expert opinion on the reliability of mobile phones identifiers used in determining the sender of an SMS message.
The attached statement was prepared based on extensive knowledge of GSM standard, the operation of GSM networks in general, and measurements of the GSM networks in Bangkok, Thailand in particular. The statement reflects the current state of GSM security research and was prepared to the best of our knowledge.
Best Regards,
Dr. Karsten Nohl
Expert statement on SMS sender identification
This statement discusses the question of whether a mobile phone sending a text message can be identified reliably based on data records in the phone network. This question is to be investigated for the dtac GSM network in Bangkok, Thailand.
Question 1: Does an SMS identify a phone (IMEI)?
An SMS transaction contains multiple small data packets exchanged between a phone and the radio network. These packets negotiate encryption, establish the transaction type, and exchange data. One example SMS transition on the dtac network included 107 packets.
Phones are identified by their IMEI numbers, which act as serial numbers.
One packet, called the “Cipher Mode Command”, can ask the phone to send its IMEI number in the next packet. However, the dtac network does not use this option in SMS transactions as shown in Figure 1. This was verified at multiple locations in Thailand.
No other message in an SMS transaction can include the IMEI number.
Answer 1: An SMS transaction on the dtac network does not identify a phone (IMEI).
[See images below]
Figure 1. Partial trace of an SMS transaction on the dtac network in Bangkok, Thailand. The “Ciphering Mode Command” message does not ask the phone to send its IMEI number.
Question 2: How does the dtac network assign an IMEI to an SMS transaction?
The mobile network and phones execute different types of transactions including SMS messages and voice calls. The only type of transaction on the dtac network that include the IMEI number are “Location Update” transactions. These transactions are done when the phone is switched on, when it changes location significantly (ie, to a different part of a city), and also periodically.
The phone identity included in a dtac SMS record most likely is copied from the most recent “Location Update” the network observed for a given subscriber account.
Answer 2: The IMEI is most likely copied from an older transaction into the dtac SMS record.
Question 3: How does the dtac network assign a location to an SMS transaction?
Answer 3: The possibility exists that the location is copied from an older transaction into the dtac SMS record. Further information from dtac is needed for a conclusive answer.
Question 4: Can an SMS message be sent without a phone?
Answer 4: SMS messages can be sent from the Internet with arbitrary spoofed sender numbers. If the dtac network creates delivery records for such transactions, it would likely include the IMEI number of the most recent “Location Update” message from the spoofed phone number. Further information from dtac is needed for a conclusive answer.
Question 5: Can individuals observe IMEI numbers on the GSM network?
“Location Update” transactions that include a phone’s IMEI number are sent encrypted over the air. The GSM standard uses outdated security that can be broken within seconds.
Software that has been available on the Internet since 2008 can be used to break the encryption of a “Location Update” message in less than one minute on a standard computer.
Since the release of the software, it has been installed in hundreds of locations around the world. Engineering students take less than one week to create a functioning intercept and decryption setup.
Answer 5: Technologically-savy individuals can extract IMEI numbers from GSM messages.
Question 6: Can SMS be sent from a phone using somebody else’s identify?
The IMEI number on almost all phones can be changed using widely available software.
Answer 6: An individual can easily change the IMEI of his/her phone to the IMEI of somebody else’s phone.
Conclusion
The dtac SMS transaction records are not reliable in identifying a phone as the emitter of an SMS message. At least two possibilities exits where the data diverts from reality:
prachatai.com, August 25, 2012
Poonsuk Poonsukcharoen, lawyer for Amphon
Tangnoppakul, has published a letter from an expert on telecommunication
technology in Germany on her Facebook page. The letter was intended to be used in the Appeals Court before the appeal was withdrawn.
000
SR Security Research Labs GmbH Veteranenstr 25 10119 Berlin
Cross Cultural Foundation (CrCF)111 Soi Sitthichon Samsennork Huaykhwang
Bangkok 10310
Thailand
Dr. Karsten Nohl
Chief Scientist
nohl@srlabs.de
+49-3089392996
Berlin, January 30th 2012
Expert statement on SMS sender identification
To whom it may concern:
Security Research Labs is a risk management think tank in Berlin, Germany that advises European telecommunication network operators and governments in mitigating risks arising from cell phone technology.
We were asked to provide a subject matter expert opinion on the reliability of mobile phones identifiers used in determining the sender of an SMS message.
The attached statement was prepared based on extensive knowledge of GSM standard, the operation of GSM networks in general, and measurements of the GSM networks in Bangkok, Thailand in particular. The statement reflects the current state of GSM security research and was prepared to the best of our knowledge.
Best Regards,
Dr. Karsten Nohl
-------------
Expert statement on SMS sender identification
This statement discusses the question of whether a mobile phone sending a text message can be identified reliably based on data records in the phone network. This question is to be investigated for the dtac GSM network in Bangkok, Thailand.
Question 1: Does an SMS identify a phone (IMEI)?
An SMS transaction contains multiple small data packets exchanged between a phone and the radio network. These packets negotiate encryption, establish the transaction type, and exchange data. One example SMS transition on the dtac network included 107 packets.
Phones are identified by their IMEI numbers, which act as serial numbers.
One packet, called the “Cipher Mode Command”, can ask the phone to send its IMEI number in the next packet. However, the dtac network does not use this option in SMS transactions as shown in Figure 1. This was verified at multiple locations in Thailand.
No other message in an SMS transaction can include the IMEI number.
Answer 1: An SMS transaction on the dtac network does not identify a phone (IMEI).
[See images below]
Figure 1. Partial trace of an SMS transaction on the dtac network in Bangkok, Thailand. The “Ciphering Mode Command” message does not ask the phone to send its IMEI number.
Question 2: How does the dtac network assign an IMEI to an SMS transaction?
The mobile network and phones execute different types of transactions including SMS messages and voice calls. The only type of transaction on the dtac network that include the IMEI number are “Location Update” transactions. These transactions are done when the phone is switched on, when it changes location significantly (ie, to a different part of a city), and also periodically.
The phone identity included in a dtac SMS record most likely is copied from the most recent “Location Update” the network observed for a given subscriber account.
Answer 2: The IMEI is most likely copied from an older transaction into the dtac SMS record.
Question 3: How does the dtac network assign a location to an SMS transaction?
Answer 3: The possibility exists that the location is copied from an older transaction into the dtac SMS record. Further information from dtac is needed for a conclusive answer.
Question 4: Can an SMS message be sent without a phone?
Answer 4: SMS messages can be sent from the Internet with arbitrary spoofed sender numbers. If the dtac network creates delivery records for such transactions, it would likely include the IMEI number of the most recent “Location Update” message from the spoofed phone number. Further information from dtac is needed for a conclusive answer.
Question 5: Can individuals observe IMEI numbers on the GSM network?
“Location Update” transactions that include a phone’s IMEI number are sent encrypted over the air. The GSM standard uses outdated security that can be broken within seconds.
Software that has been available on the Internet since 2008 can be used to break the encryption of a “Location Update” message in less than one minute on a standard computer.
Since the release of the software, it has been installed in hundreds of locations around the world. Engineering students take less than one week to create a functioning intercept and decryption setup.
Answer 5: Technologically-savy individuals can extract IMEI numbers from GSM messages.
Question 6: Can SMS be sent from a phone using somebody else’s identify?
The IMEI number on almost all phones can be changed using widely available software.
Answer 6: An individual can easily change the IMEI of his/her phone to the IMEI of somebody else’s phone.
Conclusion
The dtac SMS transaction records are not reliable in identifying a phone as the emitter of an SMS message. At least two possibilities exits where the data diverts from reality:
- SMS injected into the phone network from the Internet or SS7 network may be falsely linked to a “Location Update” message of somebody else’s phone
- Phone identities can be changed to the phone of somebody else in the same part of a city after observing a transaction of the other phone with the GSM network which requires only readily available hardware and software
Former Judge’s Views on the Case of Ah Kong | prachatai.com
Former Judge’s Views on the Case of Ah Kong | prachatai.com
prachatai.com, August 24, 2012
Originally published on the Facebook page of Poonsuk Poonsukcharoen, lawyer for Amphon (Ah Kong); Republished on Prachatai
The below is from a lecture given by Professor Satit Phairoh, a former judge, during the 65th session of the Thai Bar Association. A senior colleague sent me a recording of the lecture and I have transcribed it so that other people can read it. Doing this case, I learned a lot of lessons. These included the difficulties with temporary release, detention, the demonstration of evidence, and the admissibility of evidence. I do not want to make excuses for myself as a lawyer, but what I want is for the judicial process to progress in a noble fashion.
The cremation of Ah Kong will be on 26 August at Wat Lad Phrao. All are invited to come bid Ah Kong farewell.
------------------------------------------------------
A question was raised about Ah Kong’s case:
Article 39 of the Constitution says that everyone is presumed innocent. It is a general principle that when a person is innocent, bail must be granted. This is simple, there is nothing profound about it. According to this principle, at the time one is charged, the court has not yet delivered a verdict of whether or not the law has been broken, and so bail must be granted. If bail is denied, a rationale for why not must be provided. And, the rationale must be a logical one. When I was assigned to dispose of case dossiers, I encountered illogical rationales. When you dispose of dossiers, you have to read every one of them. I found many quite odd cases. In one case, the defendant was charged with stealing an elephant. The Court ruled that “This is major theft. Bail can’t be granted.” This rationale is not in line with the Criminal Procedure Code. This is not how it is written in the law. In another case, the defendant was accused of stealing a needle and thread. A minor theft from a house. The court ruled that, “Bail is not granted for petty theft.” It is not written in the law that bail is not granted for petty theft. There is no basis for this.
In the case of Ah Kong, on the issue of bail, the court ruled that, “The facts concerning the offence as described in the plaint gravely impact public sentiment and national security.” They wrote in this fashion before there had been any investigation, at all. This indicates that the Court already believed that the accusation was true. If you already believe the charges when you read them, how can you be a judge? You have to listen to evidence before you can write that, “The facts of the alleged offence gravely impact public sentiment and national security.” Having only read the charges, without having heard evidence in the case, how can the judge talk about the impact? You have to investigate first. Making a decision without listening to the evidence is a definitive characteristic of how a judge should not act. No matter how terrible the indictment sounds, it is an allegation only. The facts have not yet shown whether it is true or false.
They guessed further that, “If the examination of evidence results in solid proof, the defendant may flee.” The Court began by surmising that if the proof advanced was solid, then the defendant might flee. And if they surmised incorrectly, then who would be held responsible? Would they be jailed (instead of the defendant)? No. This decision was based on a guess. How do you know if the proof will be solid or not? By guessing. This conjecture had a disastrous effect for their defendant. An order like this is not characteristic of a Court that is supposed to be impartial. The order violated the Constitution. The Constitution is procedural law, if you ask me.
The Court made another incorrect conjecture. Why is this? It is written in the judgment itself that, “Although the plaintiff is unable to present indisputable proof that the defendant is the person who sent the messages as charged.” This indicates that the Court acknowledged that the plaintiff’s adduction of evidence was not indisputable. This indicates that the ruling about bail was incorrect. But the Court committed a double fault by convicting the defendant. If the evidence is not indisputable, how can you convict a defendant? This is a breach to Section 227 of the Criminal Procedure Code which clearly stipulates that in weighing the evidence, the Court must not render a judgment to convict until it is certain that the offence was committed and the defendant was the perpetrator. The word “certain” means indisputable. When you say it is not indisputable, how are you able to render a conviction?
At the end of the judgment, they wrote even more incorrectly: “But it was difficult for the plaintiff to find eyewitness evidence.” Where in the law does it say that if it is difficult, then you can convict on speculation? There is only one principle here: the plaintiff must have evidence that the defendant committed the offence beyond doubt, whether it is eyewitness or circumstantial evidence. It cannot be that there is circumstantial evidence and so you can then convict on speculation. This judgment will eternally stand and cannot be subjected to correction since Ah Kong is dead. This judgment will be eternally criticized because the Appeal Court and the Supreme Court have no chance to amend it. I presume if this case went to a higher court, the higher court would not allow the decision to stand because it was unlawful. This decision contradicts Section 227 completely. It is a contradiction on the order of saying that the sun rises in the west. Jurists must have principles, and must not write arbitrarily. If you are a judge, do not do this. Don’t think you are powerful and can do anything at will. We are not the only ones who read the law. Professor Nidhi Eoseewong has written that the Court acts arbitrarily. He is correct.
-- Professor Satit Phairoh, lecture on criminal law, 65th session of the Thai Bar Association, 8 June 2012.
Translated by Tyrell Haberkorn and Pipob Udomittipong.
prachatai.com, August 24, 2012
Originally published on the Facebook page of Poonsuk Poonsukcharoen, lawyer for Amphon (Ah Kong); Republished on Prachatai
The below is from a lecture given by Professor Satit Phairoh, a former judge, during the 65th session of the Thai Bar Association. A senior colleague sent me a recording of the lecture and I have transcribed it so that other people can read it. Doing this case, I learned a lot of lessons. These included the difficulties with temporary release, detention, the demonstration of evidence, and the admissibility of evidence. I do not want to make excuses for myself as a lawyer, but what I want is for the judicial process to progress in a noble fashion.
The cremation of Ah Kong will be on 26 August at Wat Lad Phrao. All are invited to come bid Ah Kong farewell.
------------------------------------------------------
A question was raised about Ah Kong’s case:
Article 39 of the Constitution says that everyone is presumed innocent. It is a general principle that when a person is innocent, bail must be granted. This is simple, there is nothing profound about it. According to this principle, at the time one is charged, the court has not yet delivered a verdict of whether or not the law has been broken, and so bail must be granted. If bail is denied, a rationale for why not must be provided. And, the rationale must be a logical one. When I was assigned to dispose of case dossiers, I encountered illogical rationales. When you dispose of dossiers, you have to read every one of them. I found many quite odd cases. In one case, the defendant was charged with stealing an elephant. The Court ruled that “This is major theft. Bail can’t be granted.” This rationale is not in line with the Criminal Procedure Code. This is not how it is written in the law. In another case, the defendant was accused of stealing a needle and thread. A minor theft from a house. The court ruled that, “Bail is not granted for petty theft.” It is not written in the law that bail is not granted for petty theft. There is no basis for this.
In the case of Ah Kong, on the issue of bail, the court ruled that, “The facts concerning the offence as described in the plaint gravely impact public sentiment and national security.” They wrote in this fashion before there had been any investigation, at all. This indicates that the Court already believed that the accusation was true. If you already believe the charges when you read them, how can you be a judge? You have to listen to evidence before you can write that, “The facts of the alleged offence gravely impact public sentiment and national security.” Having only read the charges, without having heard evidence in the case, how can the judge talk about the impact? You have to investigate first. Making a decision without listening to the evidence is a definitive characteristic of how a judge should not act. No matter how terrible the indictment sounds, it is an allegation only. The facts have not yet shown whether it is true or false.
They guessed further that, “If the examination of evidence results in solid proof, the defendant may flee.” The Court began by surmising that if the proof advanced was solid, then the defendant might flee. And if they surmised incorrectly, then who would be held responsible? Would they be jailed (instead of the defendant)? No. This decision was based on a guess. How do you know if the proof will be solid or not? By guessing. This conjecture had a disastrous effect for their defendant. An order like this is not characteristic of a Court that is supposed to be impartial. The order violated the Constitution. The Constitution is procedural law, if you ask me.
The Court made another incorrect conjecture. Why is this? It is written in the judgment itself that, “Although the plaintiff is unable to present indisputable proof that the defendant is the person who sent the messages as charged.” This indicates that the Court acknowledged that the plaintiff’s adduction of evidence was not indisputable. This indicates that the ruling about bail was incorrect. But the Court committed a double fault by convicting the defendant. If the evidence is not indisputable, how can you convict a defendant? This is a breach to Section 227 of the Criminal Procedure Code which clearly stipulates that in weighing the evidence, the Court must not render a judgment to convict until it is certain that the offence was committed and the defendant was the perpetrator. The word “certain” means indisputable. When you say it is not indisputable, how are you able to render a conviction?
At the end of the judgment, they wrote even more incorrectly: “But it was difficult for the plaintiff to find eyewitness evidence.” Where in the law does it say that if it is difficult, then you can convict on speculation? There is only one principle here: the plaintiff must have evidence that the defendant committed the offence beyond doubt, whether it is eyewitness or circumstantial evidence. It cannot be that there is circumstantial evidence and so you can then convict on speculation. This judgment will eternally stand and cannot be subjected to correction since Ah Kong is dead. This judgment will be eternally criticized because the Appeal Court and the Supreme Court have no chance to amend it. I presume if this case went to a higher court, the higher court would not allow the decision to stand because it was unlawful. This decision contradicts Section 227 completely. It is a contradiction on the order of saying that the sun rises in the west. Jurists must have principles, and must not write arbitrarily. If you are a judge, do not do this. Don’t think you are powerful and can do anything at will. We are not the only ones who read the law. Professor Nidhi Eoseewong has written that the Court acts arbitrarily. He is correct.
-- Professor Satit Phairoh, lecture on criminal law, 65th session of the Thai Bar Association, 8 June 2012.
Translated by Tyrell Haberkorn and Pipob Udomittipong.
Saturday, August 18, 2012
Doctors find woman accused of lèse majesté insane | prachatai.com
Doctors find woman accused of lèse majesté insane | prachatai.com
prachatai.com, August 18, 2012
A 63-year-old woman, who was alleged to have committed lèse majesté during a protest in front the Constitution Court in July, has been diagnosed as mentally ill by psychiatrists.
On 16 Aug, Pol Lt Col Phiphob Sukkam, a Deputy Superintendent of Investigation at Thung Song Hong Police Station in Bangkok, said that the Galya Ratchanakharin Institute, where Thitinan Kaewjantranon had been held since her arrest, had already submitted its diagnosis of her mental health.
Thitinan was examined by a team of psychiatrists, psychologists and other specialists, led by a former Director-General and a Deputy Director-General of the Department of Mental Health under the Ministry of Public Health.
‘According to the diagnosis, Thitinan is mentally ill and is in need of at least a further two months’ medical treatment at the institute. She is now incapable of giving any testimony and handling any legal action,’ the police officer said.
The case will be forwarded to Deputy Commander of Metropolitan Police Pol Maj Gen Parinya Chansuriya, the chief investigator in charge of the case, to consider what to do next, he said.
On the same day, Criminal Court Director-General Thawee Prachuablarb told reporters that in cases where the accused claimed during police investigation that they were mentally ill [in committing alleged crimes], police investigators were obliged to send them to be examined by psychiatrists.
If the accused are found to be permanently mentally ill, having committed the alleged crimes without being able to control themselves, they will probably be acquitted. But, if found to be temporarily mentally ill, they will probably be sentenced to punishment less severe than that prescribed in the law, he said, citing Section 65 of the Criminal Law:
As Section 112 of the Criminal Code prescribes a penalty of lèse
majesté of from 3 to 15 years’ imprisonment, those who are found to be
‘partially able’ to control themselves might, for example, be sentenced
to one or two years’ imprisonment, he said.
If investigators or the courts view that the accused are mentally ill and not capable of handling their legal cases, they are authorized by law to suspend any legal proceedings and send the accused to receive medical treatment at mental institutes or hospitals until they are considered able to account for themselves, he said.
Thitinan, a New Zealand resident, was accused of lèse majesté for her allegedly improper actions against a picture of HM the King in front of the Constitution Court on 13 July.
Having been held under medical care by the institute since her arrest, she has been officially forbidden go abroad by the police.
prachatai.com, August 18, 2012
A 63-year-old woman, who was alleged to have committed lèse majesté during a protest in front the Constitution Court in July, has been diagnosed as mentally ill by psychiatrists.
On 16 Aug, Pol Lt Col Phiphob Sukkam, a Deputy Superintendent of Investigation at Thung Song Hong Police Station in Bangkok, said that the Galya Ratchanakharin Institute, where Thitinan Kaewjantranon had been held since her arrest, had already submitted its diagnosis of her mental health.
Thitinan was examined by a team of psychiatrists, psychologists and other specialists, led by a former Director-General and a Deputy Director-General of the Department of Mental Health under the Ministry of Public Health.
‘According to the diagnosis, Thitinan is mentally ill and is in need of at least a further two months’ medical treatment at the institute. She is now incapable of giving any testimony and handling any legal action,’ the police officer said.
The case will be forwarded to Deputy Commander of Metropolitan Police Pol Maj Gen Parinya Chansuriya, the chief investigator in charge of the case, to consider what to do next, he said.
On the same day, Criminal Court Director-General Thawee Prachuablarb told reporters that in cases where the accused claimed during police investigation that they were mentally ill [in committing alleged crimes], police investigators were obliged to send them to be examined by psychiatrists.
If the accused are found to be permanently mentally ill, having committed the alleged crimes without being able to control themselves, they will probably be acquitted. But, if found to be temporarily mentally ill, they will probably be sentenced to punishment less severe than that prescribed in the law, he said, citing Section 65 of the Criminal Law:
Whenever any person commits an offence at the
time of not being able to appreciate the nature, or illegality of his
act or not being able to control himself on account of defective mind,
mental disease or mental infirmity, such person shall not be punished
for such offence.
But, if the offender is still partially able
to appreciate the nature or illegality of his act, or is still partially
able to control himself, such person shall be punished for such
offence, but the Court may inflict less punishment to any extent than
that provided by the law for such offence.
If investigators or the courts view that the accused are mentally ill and not capable of handling their legal cases, they are authorized by law to suspend any legal proceedings and send the accused to receive medical treatment at mental institutes or hospitals until they are considered able to account for themselves, he said.
Thitinan, a New Zealand resident, was accused of lèse majesté for her allegedly improper actions against a picture of HM the King in front of the Constitution Court on 13 July.
Having been held under medical care by the institute since her arrest, she has been officially forbidden go abroad by the police.
Wednesday, December 14, 2011
Ah Kong, Lesè Majesté, and Article 17 of the ICCPR
On 14 December 2011, Sittisak Wanachakit, Justice Court spokesperson, made an extensive comment, published on กรุงเทพธุรกิจ, on the case of Ah Kong, the 61-year-old man recently sentenced to twenty years in prison under Article 112 of the Thai Criminal Code (the lesè majesté law: “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years”) and the 2007 Computer Crimes Act. Ah Kong’s crime was to allegedly send four SMS messages with alleged anti-monarchy content. In the preface to his statement, Sittisak explained that he decided to issue a formal statement given the interest this case has generated both many sectors of Thai society and various foreign governments. Much of the criticism from various circles has not been based in careful analysis of complete information, he alleged, so the court could not let it go unchallenged. As if to underscore the unwelcomeness of this interest and scrutiny, Sittisak compared its effects on the court and judiciary with that of the (rotten) floodwater that inundated the the city of Bangkok recently [“เหมือนกระแสน้ำที่ไหลบ่ามาท่วมศาลและกระบวนยุติธรรมเช่นน้ำท่วมกรุงเทพฯ ที่ผ่านมา”].
For the purposes of clarifying misunderstandings, Sittisak noted that he would bring several pieces of information from the court file into the public domain. His argument was based around debunking five misunderstandings about this case, as follows: 1) Ah Kong did not commit any wrongdoing, so then why was he sentenced to prison; 2) The sentence of 20 years is too harsh; 3) Ah Kong is elderly and so should receive a reduced sentence, his freedom, or bail; 4) Thai courts do not abide by international standards and Ah Kong should have access to the freedom of expression; and 5) Article 112 and the 2007 Computer Crimes Act should be repealed. His responses to each of these was laced with contempt for the critics of the court and an assumption that the criticism was born out of a lack of knowledge.
While each of Sittisak’s points demands careful attention, here I would like to briefly address his comments about Thai courts, freedom of expression and international rights standards. Of equal concern to the contempt to which Sittisak seems to hold the court’s critics is what I read as a cynical use of the International Covenant on Civil and Political Rights (ICCPR) to justify the use of Article 112 of the Thai Criminal Code. The ICCPR, along with the International Covenant on Economic, Social, and Cultural Rights (ICESCR), take the ideas for the protection of human rights outlined in the Universal Declaration of Human Rights (UDHR), and make them legally binding for states which choose to ratify them.
As Sittisak notes, Thailand became a state party to the ICCPR on 29 October 1996 and it is entered into force in Thai law on 29 January 1997. He argues that Thai law fully guarantees the protection of Article 19, reproduced below, which addresses the protection of freedom of expression:
1. Everyone shall have the right to hold opinions without interference.
2. 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.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
There is slippage within both the text of Article 112 of the Thai Criminal Code and the 2007 Computer Crimes Act, which permits for actions damaging to “national security,” which can be understood to include speech about the monarchy, on which some conservative critics have argued State responsibilities under Article 19 can be abrogated.
Yet rather than doing so, Sittisak invoked another article of the ICCPR in support of Article 112. In defense of the enforcement of the lesè majesté law, under which an increasingly epidemic number of Thai citizens have been intimidated, prosecuted, and incarcerated, Sittisak cited Article 17 of the ICCPR. Article 17 reads:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Using the ICCPR as justification for the 20-year incarceration of a man for allegedly sending 4 SMS messages is a cynical ploy which displays a profound lack of concern for human rights. Invoking Article 17, most often used as justification for the right to privacy, however, also raises a series of critical questions within this context. Sittisak argued that while Article 19 of the ICCPR guarantees freedom of expression, Article 17 means “the use of that freedom must be done responsibly and must not violate the rights of individuals, as all individuals have the right to protect their reputation and honour and this must be protected within the law as well” [“การใช้ สิทธิดังกล่าวต้องทำด้วยความสำนึกรับผิดชอบและไม่ล่วงละเมิดสิทธิของบุคคล เนื่องจากบุคคลทุกคนย่อมมีสิทธิ ในการรักษาชื่อเสียงและเกียรติภูมิของตนและต้องได้รับการคุ้มครองตามกฎหมาย ด้วยเช่นกัน”].
Yet there are other possible readings of Article 17 in relation to the case of Ah Kong and other cases prosecuted under Article 112 of the Thai Criminal Code and the 2007 Computer Crimes Act. Before outlining these, I turn briefly to General Comment 16 of the Office of the UN High Commissioner for Human Rights (OHCHR), released in 1988, which offers the UN interpretation of Article 17 of the ICCPR and makes suggestions for how it should be dealt with domestic law. The comment is worth reading in full, but several points merit closer examination within this context. The OHCHR noted that Article 17 deals with unlawful actions and arbitrary interference by State and other actors. By “lawful,” they mean “that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.” On “arbitrary interference,” the OHCHR explained that it “can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.” The practice by which Article 112 and the 2007 Computer Crimes Act have been used in recent years could be criticized as being both unlawful and arbitrary within these terms.
Of broadest relevance, however, is a section of General Comment 16 on Article 17 that pertrains to surveillance: “Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited. Searches of a person's home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment.” Ongoing web tracking projects by the Special Branch Police and the Ministry of Information and Computer Technology, and Deputy Prime Minister Chalerm Yubamrung’s recent announcement about cracking down on websites deemed to have anti-monarchy content all constitute surveillance.
As dissonant as using the ICCPR to justify the prosecution and harsh sentencing of Ah Kong, Sittisak Wanachakit made another comment about the status of Ah Kong within the Thai judiciary in Thailand that raises more concerns for this critic than it allays. He commented that “Until his case reaches the final point [Supreme Court], Ah Kong is presumed innocent” [“อากงยังถูกสันนิษฐานว่าเป็นผู้บริสุทธิ์จนกว่าคดีจะถึงที่สุด”]. Yet this statement is buried in the middle of a press statement in which Sittisak has justified the 20-year sentence on the basis of the alleged rude and damaging content of the four SMS messages, and in which he has invoked one of the most important international human rights instruments to justify the stripping a citizen of his rights. I would like to take Sittisak’s assertion seriously, but so far, I have seen no evidence in support of it.
Elizabeth Fitzgerald is the pen name of an observer of Thai politics and history. She can be reached at lizziefitzy@gmail.com.
Saturday, December 3, 2011
Rights group says Thai monarchy laws need reform
Associated Press, Bangkok | Sat, 12/03/2011 6:56 PM
Human Rights Watch is urging Thailand's government to amend harsh laws aimed at protecting the monarchy.
The New York-based rights group's call Saturday comes after a Bangkok court sentenced a Thai man last month to 20 years in prison for sending mobile phone text messages to a personal secretary of then-Prime Minister Abhisit Vejjajiva that were deemed offensive to the queen. The secretary filed an official complaint and police detained the man in August 2010.
Thai officials could not immediately be reached for comment Saturday.
Thailand's so-called lese majeste laws are believed to be the harshest in the world. Those found guilty of defaming the monarchy face three to 15 years behind bars under the penal code's Article 112.
Subscribe to:
Posts (Atom)
Posts
