THAILAND: Freedom of expression under attack
Asian Legal Resource Centre, JUne 12, 2012
he Asian Legal Resource Centre (ALRC) wishes to bring the crisis of
freedom of expression in Thailand to the attention of the Human Rights
Council. This statement is the third on this topic that the ALRC has
submitted to the Council since May 2011. During the seventeenth session
of the Council in May 2011, the ALRC highlighted the rise in the legal
and unofficial use of section 112 of the Criminal Code and the 2007
Computer Crimes Act (CCA) to constrict freedom of expression and
intimidate citizens critical of the monarchy (A/HRC/17/NGO/27). In
February 2012, the ALRC detailed some of the threats faced both by those
who have expressed critical views of the monarchy, both legal and
extralegal, as well as those who have expressed concern about these
threats (A/HRC/19/NGO/55).
The ALRC is again raising the freedom of expression to stress the
persistence of the threat present, foreground the intensification of the
dangers to human rights in Thailand broadly, and to acknowledge the
continued courageous actions by citizens to revise or revoke section 112
and the CCA, despite these threats and dangers. As the ALRC has
continually stressed, within the context of the political crisis that
began with the 19 September 2006 coup and greatly increased with the
violence of April-May 2010, the protection of fundamental human rights,
including freedom of expression, is essential if there is to be the
possibility of successful democratization and widespread access to
justice in Thailand.
Section 112 criminalizes criticism of the monarchy and mandates that,
“Whoever defames, insults or threatens the King, Queen, the
Heir-apparent or the Regent, shall be punished with imprisonment of
three to fifteen years." Statistics provided by the Office of the
Judiciary indicate a sharp rise in lese-majesty charges filed since the
19 September 2006 coup, with 33 charges filed in 2005, 30 filed in 2006,
126 filed in 2007, 77 filed in 2008, 164 filed in 2009, and an
extraordinary 478 charges filed in 2010. While statistics released for
the first five months of 2011 indicate a reduction in the number of
charges filed, information for the second half of 2011 and 2012 to date
has not been made available publicly. The failure of the Government of
Thailand to provide information itself raises many unanswered questions
about the use of the law to diminish space for freedom of expression
through the use of secrecy and generating of uncertainty.
Court judgments in cases of individuals charged and prosecuted under a
combination of section 112 and the CCA are similarly resistant to
scrutiny and ready comprehension. Section 14 of the CCA notes that
anyone can be jailed for five years if found to have imported to a
computer "false computer data in a manner that it is likely to damage
the country's security or cause a public panic… any computer data
related with an offence against the Kingdom's security under the
Criminal Code." As section 112 also is classed as a crime related to
national security, it can be powerfully combined with the CCA to punish
dissent, or perceived dissent, carried out via electronic means. Two
recent cases, of Mr. Amphon Tangnoppakul and Ms. Chiranuch Premchaiporn,
illustrate the dangers to freedom of expression posed by categorizing
criticism of the monarchy as a crime against national security and the
lacunae in the CCA, which makes it a ready vehicle for enhancing these
dangers.
On 8 May 2012, Mr. Amphon Tangnoppakul, a 61-year-old man, was found
dead in prison custody. At the time of his death, Amphon was serving a
20-year sentence received upon being convicted of four violations under
section 112 and the CCA on 23 November 2011. Amphon was convicted for
allegedly sending four SMS messages defaming the Thai queen and
insulting the honor of the monarchy. In this submission, we concentrate
on the legal ambiguities and lacunae in the case that go to the
criminalizing of free speech through the use of section 112 and the CCA
in Thailand:
a. Similar to other court decisions in cases of
alleged violations under section 112 and the CCA, the judges in this
case had to infer the meaning of the four SMS messages in question
(which was imprecise), the alleged intention of the defendant, and
speculate on any potential damage caused to the monarchy and national
security. At best, the court’s interpretation could be described as
legally inexact. At worst, it can be described as complete fiction.
b. The court’s logic in finding the four SMS
messages in question criminal rested on an argument about the validity
of the information contained within them and on what this might cause
readers of the messages to believe. More specifically, the judgment
reads that the messages were
“… the import to a computer system of false
computer data, that was defamatory, insulting, and threating to the
king, queen, heir-apparent, and regent. would cause those who saw it to
believe that the content of the messages was the truth, which would
damage the nation’s security. As a result, some of the aforementioned
actions of the defendant are likely to damage the honor and reputation
of the king, queen, heir-apparent, and regent and to cause them to be
insulted and despised. With an intention to cause the people to
dishonor, fail to venerate, and threaten the king, queen, heir-apparent,
and regent.”
Throughout the decision the adjective “likely” is
used; in other words, damage was not caused by the SMS messages, but was
probable in the opinion of the court. The ruling was not one that found
the defendant guilty beyond doubt, but rested on a highly uncertain
balance of probability.
c. In addition, to interpret under the CCA the
sending of a rude SMS message as “the import to a computer system of
false computer data” is to stretch the category of “false computer data”
beyond the already broad ambit provided by the law. Several pages later
in the court decision, “false” is elaborated in political, rather than
scientific or legal terms. The judges write that the four SMS messages
in question
“… are entirely false because the truth reflected
for the people around the country is the king and the queen are full of
compassion. They are concerned for every person in the land and perform
their royal duties for the benefit and happiness of the Thai citizenry.”
While this may be the judges’ opinion of the
monarchy, to categorize it as truth is an ideological stance
inappropriate for an ostensibly independent judiciary to take, and does
not constitute any form of grounds for conviction under law. Further,
given the increased frequency with which section 112 is being enforced,
this statement is difficult to appeal against, either in law or in
public debate, without also risking being charged under the law.
d. Finally, even if the accused in this case had
committed the offences as alleged, the 20-year sentence raises
significant concerns about the proportionality of punishment for crimes
of defamation in Thailand and speaks manifestly to an imbalance in the
law of Thailand as written and as currently enforced between protecting
the sovereign and protecting the human rights of people residing in the
country.
On 30 May 2012, Ms. Chiranuch Premchaiporn, a 44-year-old human
rights defender and webmaster of Prachatai, an independent online news
site, was found guilty of one count out of ten alleged charges of
violating the CCA. The charges against her in this case stemmed from her
alleged failure to remove comments deemed offensive to the monarchy
from the Prachatai webboard quickly enough. The prosecution alleged that
this indicated her support of and consent to the comments, which
constituted a violation under the CCA. She was sentenced to one year in
prison and a 30,000 baht fine, which was reduced to a suspended sentence
of eight months and a 20,000 baht fine.
a. In the decision, the judges responded with an
assessment of the appropriate length of time. The decision notes that in
nine of the ten comments in question, they were removed within one to
eleven days, and that this indicates that Chiranuch did not
intentionally support or consent to them. In the instance of the tenth
comment, which remained online for twenty days before she removed it,
however, the court concluded that this duration indicated “implied
consent.”
b. Of particular concern to the ALRC was a
statement in the ruling that while apparently endorsing freedom of
expression in fact does precisely the opposite by imposing on the public
the obligation to self-censor or be subject to criminal actions:
“The court acknowledges that freedom of expression
is a basic right of citizens that is guaranteed and protected in every
Thai Constitution. This is because freedom of thought and expression
reflects good governance and the democratization of a given entity or
nation. Criticism from the people, both positive and negative, provides
an opportunity to improve the nation, given entity, and individuals for
the better. But when the defendant opened a channel for the expression
of opinions within a computer system, she was the service provider and
it was within her control. The defendant had a duty to review the
opinions and information that may have impacted the country’s security
as well as the liberty of others which deserves similar respect. the
defendant cannot cite freedom of expression in order to be released from
liability.”
This statement, far from being an endorsement of
free expression, is a direct attempt of the Court to disavow the right
to freedom of expression found both in the Constitution of Thailand and
in the ICCPR. The role of the Court and the judiciary in a broad sense
should be to aid the development of justice and the rule of law, not aid
in its dismemberment.
The ALRC is concerned that the cases of both Amphon Tangnoppakul and
Chiranuch Premchaiporn are both indicative of how the judiciary in
Thailand is marshaling spare evidence to convict persons of offences
under political laws, and in so doing, of its role in eroding
institutions and structures that are supposed to guarantee human rights
and protect freedom of expression.
The ALRC also wishes to draw the Council’s attention to the courage
of human rights activists, media advocates, and citizens in Thailand who
continue to call for reform of section 112 despite the growing legal
and extrajudicial threats they face. Under the 2007 Constitution, if at
least 10,000 citizens sign in support of a proposed amendment to law,
then it must be examined by the parliament. On 28 May 2012, the Campaign
Committee for the Amendment of Section 112, a coalition of human rights
and media activists, writers, artists, and citizens, presented 26,968
signatures in support of an amendment to section 112 limiting its use
and reducing the punishment for violations. It is essential that in the
coming months, the 26,968 citizens who signed in support of the draft
amendment do not experience harassment or other repercussions for doing
so.
The Asian Legal Resource Centre expresses solidarity with those
persons in Thailand working to have laws aimed at narrowing the freedom
of expression revoked or amended, and calls upon the Human Rights
Council and also Special Procedures of the Commissioner for Human Rights
to contribute to their efforts by urging the Government of Thailand to
make the necessary changes to protect this fundamental human right. In
this regard, the ALRC calls on the Special Rapporteur on Freedom of
Expression to continue to monitor the situation on the ground in
Thailand and to request the government to make an official visit to the
country at the nearest possible opportunity to meet with concerned
persons and produce a report with recommendations to the Government of
Thailand for legal and institutional changes to the same end.
A written statement submitted by the Asian Legal Resource Centre
(ALRC), a non-governmental organisation with general consultative
status
HUMAN RIGHTS COUNCIL
Twentieth session, Agenda Item 3, Interactive Dialogue with the Special Rapporteur on freedom of expression
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